What cannot be included in a prenup?

Prenuptial agreements, or prenups, are becoming increasingly popular among couples in the UK. These agreements help outline the division of assets and financial arrangements in the event of a divorce. For civil partners, the document is called a pre-registration agreement and covers the same things. The term prenup in this blog covers both a prenuptial agreement and a pre-registration agreement.

However, it’s crucial to understand that not everything can be included in a prenup. In this article, we will explore what cannot be included in a prenup in the UK, ensuring you have a clear understanding of the limitations and legal boundaries.

Understanding prenuptial agreements

A prenuptial agreement is a legal contract entered into by two people before they marry or enter into a civil partnership, detailing how their assets will be divided should their marriage end in divorce or dissolve a civil partnership. While prenups can provide clarity and protect individual assets, they must adhere to UK law and fairness principles. Courts have the discretion to uphold or dismiss parts of a prenup based on these principles.

Limitations of prenuptial agreements

While prenups can cover a wide range of financial matters, there are specific areas that cannot be included or are unlikely to be upheld by UK courts.

Child arrangements

Child arrangements cannot be predetermined in a prenuptial agreement. UK courts prioritise the best interests and the welfare of the child, and any decisions be made based on the child’s needs at the time of the divorce or dissolution, not on prior agreements.

Child maintenance

Similar to general child arrangements, child maintenance cannot be included in a prenup. The Child Maintenance Service retains the right to decide on child support based on current circumstances to ensure the child’s financial needs are met adequately. Parents can make separate arrangements for children in terms of maintenance but the jurisdiction of the CMS to govern child maintenance cannot be ousted.

Unfair terms

Any terms that are considered grossly unfair or inequitable to one party are unlikely to be upheld. For example, if a prenup leaves one partner in significant financial hardship while the other retains most of the assets, the court may find it unfair and refuse to enforce it.

Personal lifestyle clauses

Clauses that dictate personal lifestyle choices, such as requirements regarding weight, appearance, or personal habits, are not enforceable in UK prenups. These matters are considered private and beyond the scope of what a legal agreement can govern.

Provisions encouraging divorce or dissolution

Any clause that appears to incentivise or encourage divorce or dissolution is not likely to be considered as enforceable by the court. Prenups should aim to provide financial clarity and protection, not to create conditions that might lead to the dissolution of the marriage or civil partnership.

Waiving of spousal support

While spousal support can be addressed in a prenup, outright waiving of spousal support may not be upheld if it leaves one partner in a vulnerable financial position. The court will review such provisions to ensure they are fair and reasonable at the time of the divorce or dissolution.

Agreements made under duress

Any prenuptial agreement signed under pressure or coercion is not valid. Both parties must enter into the agreement voluntarily, with sufficient time to consider its terms and seek independent legal advice.

Incomplete financial disclosure

A prenup requires full and honest disclosure of all assets and liabilities by both parties. If it is discovered that one party concealed or misrepresented their financial situation, the prenup can be invalidated.

Ensuring a valid prenup

To ensure your prenup is valid and enforceable, consider the following steps:

Seek independent legal advice

Both parties should have their own solicitors to provide independent legal advice. This ensures that both understand the terms and implications of the agreement fully.

Full financial disclosure

Complete and honest disclosure of all financial assets, liabilities, income, and expenses is essential. Transparency is key to a fair and enforceable prenup.

Fair and reasonable terms

The prenup should be fair and reasonable to both parties. Avoid including any terms may result in the needs of one partner not being met.

Proper timing

Ensure the prenup is signed well in advance of the wedding or civil ceremony. Last-minute agreements can be contested on grounds of undue pressure or lack of adequate consideration.

Regular review and update

Consider reviewing and updating the prenup periodically, especially if there are significant changes in financial circumstances. This helps maintain its relevance and fairness over time.

How our family lawyers can help

While prenuptial agreements can provide valuable protection and clarity, it is essential to understand their limitations. Child arrangements and maintenance, unfair terms, personal lifestyle clauses, and provisions encouraging divorce or dissolution cannot be included. Additionally, ensuring the prenup is signed voluntarily, with full financial disclosure and independent legal advice, is crucial for its validity.

At Moore Barlow, our experienced prenup lawyers are here to guide you through the process of drafting a prenuptial agreement that is fair, comprehensive, and legally sound. Contact us today to learn more about how we can assist you in protecting your financial future while adhering to UK legal standards.