A prenuptial agreement is a contract that couples can choose to enter before they get married. Although they aren’t technically legally binding in England and Wales, they can carry significant weight when in court.
Due to this, it is essential to understand what can and what cannot be included in a prenuptial agreement.
What is a Prenuptial Agreement?
A Prenuptial Agreement, also called a ‘prenup’, is a document that is drawn up between a couple before their marriage to outline how their assets will be divided in the event of a divorce. Assets can include property, pensions, businesses, inheritance, income and prenups can also deal with debts.
A Prenup helps couples to avoid any financial surprises if the relationship were to break down in the future and they are usually put in place when one partner has, or is likely to have, more assets than the other.
Who can enter into a prenuptial agreement?
Anyone who is getting married can enter a prenuptial agreement, but there may be specific reasons why different couples enter into one.
Typically, prenuptial agreements are used to cover:
- Protecting assets that have been accrued prior to the relationship, particularly if children are involved from a previous relationship
- Protecting future children’s inheritance or specific assets
- Protecting inherited money, assets or savings
- Giving you both a say in how your assets are split if you do get divorced
- Allowing one partner to retain full control of a business
What can be included in a prenuptial agreement?
Prenuptial agreements are put in place to protect a wide range of different assets and can be completely tailored to suit you and your partners’ needs.
The agreements must contain full details of all of your assets, incomes and liabilities otherwise the court will not attach any weight to them in a future dispute if there has not been full and frank disclosure from each party as to their financial positions.
The agreement would usually also include how your assets are to be managed during your marriage, as well as how they will be split if you and your partner decide to divorce.
Prenuptial agreements should include details of the following:
- Properties
- Savings and details of all bank accounts
- Premium bonds
- Inheritance
- Stocks and shares
- Investments
- Pension pots
- Income
- Business interests
- Trusts
- Debts
A good starting point for a prenuptial agreement is by making a list of all the assets you own, both individually and jointly. From here, you can decide how you would like them to be dealt with in the event of a divorce.
When you prepare the prenuptial agreement, you will be able to decide whether one partner keeps the assets, if you will split them and what percentage each of you will receive. Please note that if a Prenup does not meet the needs of any dependent children and both parties, then it will not be upheld by the court.
Can prenuptial agreements address child custody issues?
No, prenuptial agreements cannot include child custody issues and these should be dealt with outside of the prenuptial agreement.
Child custody itself is governed by the Children Act 1989, which outlines the legal framework for how custody is decided if the arrangements for the children cannot be agreed.
However, couples can include provisions that outline how they intend to co-parent in the event of a divorce. Although these won’t be legally binding, they can still act as a useful guide in regards to child custody discussions and help prevent disputes from arising in the future.
What cannot be included in a prenuptial agreement?
Although prenuptial agreements do cover a wide variety of assets, there are some restrictions about what can and cannot be included. Not considering these when signing a prenuptial agreement could result in the agreement not being taken seriously in court.
Things that cannot be included in a prenuptial agreement include:
- Child custody and support – This includes things such as visitation rights, religious upbringings and schooling.
- Personal matters – This refers to household chores, intimacy and the name each spouse will take once they are married.
- Illegal matters – Anything illegal cannot be included in a prenuptial agreement.
- Lifestyle matters – This includes the daily habits of each spouse.
Prenuptial agreements are a complex area of law and they often require expert advice. If you and your partner wish to have a prenuptial agreement in place before you get married, please get in touch with our team to arrange a consultation where we can discuss the best way forward for you.
It is advisable to do this as soon as you decide to get married as Prenups take time to negotiate, prepare and sign. They also should be signed at least 28 days before the wedding.
We will always provide you with further and specific advice tailored to meet your specific circumstances.