What is a prenuptial agreement?

A prenuptial agreement, commonly known as a prenup, is a legal contract entered into by a couple before marriage. This agreement outlines the division of assets and financial responsibilities in the event of a divorce or separation. Prenuptial agreements can also address other important matters such as spousal maintenance and the handling of debts.

While prenups may seem unromantic, they are practical tools that can provide clarity and protection for both parties.

What is the purpose of a prenup?

Prenuptial agreements are designed to protect the interests of both parties entering into a marriage. By clearly defining the assets that each party has brought into the marriage and the distribution of assets, financial obligations, and other critical matters in the event of separation, prenups help minimise potential conflicts and legal disputes should the marriage end in divorce. These agreements are particularly important for individuals with significant assets, business interests, potential significant inheritance or those entering a second marriage.

Victoria Walker

Victoria Walker

Partner | Family

020 8334 0315

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Key components of a prenuptial agreement

Asset division

A prenup details how assets acquired before and during the marriage will be divided in the event of a divorce. This can include property, investments, savings, and personal belongings. Clearly defining asset division helps prevent contentious disputes and ensures a fair distribution.

Debt management

The agreement can also outline how any existing debts and liabilities will be handled. This can include credit card debts, loans, and mortgages. By specifying debt responsibilities, couples can avoid financial surprises and ensure that debts are managed equitably.

Spousal support

Prenups can establish terms for spousal maintenance, including the amount and duration of payments. This provides financial security for both parties and helps set clear expectations.

Business interests

If one or both parties own a business, the prenup can specify how business interests will be treated. This can include the valuation of the business, how it will be divided, and whether the other spouse will have any claim to it.

Inheritance and family obligations

The agreement can address how inheritances and family obligations will be handled. This is particularly important if one party expects to receive a significant inheritance or has responsibilities towards children from a previous relationship.

Other provisions

Prenups can include various other provisions, such as the handling of future assets, pensions, and financial responsibilities during the marriage. You can include additional clauses which customise the agreement to fit the couple’s unique circumstances.

When should you consider a prenuptial agreement?

There are several situations in which a prenuptial agreement may be particularly beneficial. Here are some scenarios where considering a prenup is advisable:

Significant assets or income

If one or both parties have substantial assets or high incomes, a prenup can protect these assets and ensure that they are fairly distributed in the event of a divorce.

Business ownership

Entrepreneurs and business owners should consider a prenup to safeguard their business interests. This ensures that the business remains protected and its value is clearly defined.

Previous marriages

Individuals entering a second or subsequent marriage may have ongoing financial obligations from a previous marriage, such as child or spousal maintenance. A prenup can help manage these obligations and protect the interests of children and former spouses from previous relationships.

Disparity in wealth

If there is a significant difference in wealth or income between the parties, a prenup can help protect the financially weaker party and ensure that both parties are treated fairly in the event of a divorce.

Inheritance expectations

Those who expect to receive a substantial inheritance should consider a prenup to specify how these assets will be handled. This can help ensure that inheritances are protected and distributed according to the individual’s wishes.

Debt protection

If one party has significant debts, a prenup can protect the other party from being responsible for those debts. This helps ensure that financial responsibilities are clearly defined and managed.

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How to create a prenuptial agreement

Creating a prenuptial agreement involves several important steps. Here’s a guide to help you navigate the process:

Open and honest communication

The first step is to have an open and honest discussion with your partner about your financial situation and the need for a prenup. It’s important to approach this conversation with sensitivity and respect, ensuring that both parties understand the benefits of the agreement.

Consult legal professionals

Both parties should seek independent legal advice to ensure that their rights and interests are protected. Consulting with experienced family law solicitors can help ensure that the agreement is fair, legally sound, and has the greatest chance of being upheld.

Disclosure of assets and debts

Full and frank disclosure of all assets and debts is crucial for creating a valid prenup. Each party should provide a complete list of their financial situation, including all assets, liabilities, income, and expenses. This can also include potential future wealth.

Negotiation and drafting

With the assistance of their solicitors, the couple will negotiate the terms of the prenup. This process involves discussing and agreeing on asset division, debt responsibilities, spousal support, and other important matters. Once the terms are agreed upon, the solicitors will draft the agreement.

Review and revision

It’s important to review the drafted prenup carefully and make any necessary revisions. Both parties should thoroughly understand the terms and ensure that the agreement reflects their wishes and intentions.

Signing and witnessing

Once the prenup is finalised, both parties must sign the agreement in the presence of witnesses. This formalises the agreement.

Legal considerations and enforceability

Prenuptial agreements are not legally binding in England and Wales but where they are fair and meet each party’s needs, they are more likely to be upheld.  There are some requirements set out in case law and Law Commission guidance which the parties should ensure they meet to give them the greatest chance of the agreement being upheld. These are:

  • Voluntary agreement: Both parties must enter into the agreement voluntarily and without coercion. Any indication of pressure or duress can render the prenup invalid. The final prenup should be signed at least 28 days before the date of the wedding.
  • Independent legal advice: Each party should seek independent legal advice to understand their rights and the implications of the agreement. This helps ensure that the prenup is fair and legally sound.
  • Full disclosure: Complete and honest disclosure of all assets and debts is essential. Failure to disclose all relevant financial information can result in the agreement being set aside by the court.
  • Fair and reasonable terms: The terms of the prenup must be fair and reasonable at the time of signing. Courts may refuse to enforce agreements that are deemed to be significantly unfair or one-sided.
  • Proper execution: The prenup must be properly executed, with both parties signing the agreement in the presence of independent, adult witnesses.

Common misconceptions about prenuptial agreements:

There are several misconceptions about prenuptial agreements that can deter couples from considering them. Here, we address some common myths and clarify the realities of prenups:

  1. Prenups are only for the wealthy: While prenups are beneficial for those with significant assets, they can also protect individuals with moderate assets or specific financial concerns. Prenups can provide clarity and security for any couple, regardless of their financial situation.
  2. Prenups are unromantic: Discussing finances and future planning can strengthen a relationship by fostering open communication and mutual understanding. A prenup can provide peace of mind and help couples start their marriage with clear expectations.
  3. Prenups guarantee divorce: Having a prenup does not mean that a couple is more likely to divorce. Instead, it serves as a precautionary measure, providing protection and clarity in the event of a separation.
  4. Prenups are not enforceable: Prenups are not legally binding in England and Wales because it is not possible to override the Court’s ability to make decisions about how the finances should be divided upon divorce. However, where certain requirements are met, as set out above, the Court will uphold the agreement unless it is not fair to do so.
  5. Prenups are only about money: While financial matters are a significant component of prenups, these agreements can also address other important issues such as inheritance rights, spousal support, and debt responsibilities.

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Postnuptial agreements: an alternative to prenups

For couples who did not create a prenuptial agreement before marriage, a postnuptial agreement offers a viable alternative. Similar to a prenup, a postnuptial agreement outlines the division of assets, financial responsibilities, and other important matters. The key difference is that a postnuptial agreement is created after the couple is already married.

Postnuptial agreements can be particularly useful for couples who experience significant changes in their financial situation, such as acquiring substantial assets or starting a business, after getting married. They can also help address any financial concerns that arise during the marriage and provide clarity and security for both parties.

How Moore Barlow can help

A prenuptial agreement is a valuable tool for protecting the interests of both parties entering into a marriage. By clearly defining the division of assets, financial responsibilities, and other important matters, prenups help minimise potential conflicts and legal disputes in the event of a divorce. Whether you have significant assets, business interests, or specific financial concerns, a prenup can provide clarity, security, and peace of mind.

At Moore Barlow, we understand the importance of creating prenuptial agreements that are fair and meet the requirements set out in the law, which are tailored to your unique circumstances. Our experienced Prenuptial & postnuptial agreement solicitors are here to guide you through the process, ensuring that your interests are protected.

If you are considering a prenuptial or postnuptial agreement we invite you to contact us for a consultation. Let us help you start your marriage on a foundation of trust, clarity, and mutual understanding.

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Helping you with your prenup needs

Our legal team provides expert advice and representation for couples during the key relationship milestones, helping you navigate the complexities.

Find out more

Frequently asked questions

How do I get a prenup?

To get a prenuptial agreement in England or Wales, follow these steps:

  1. Discuss the need for a prenup with your partner.
  2. Each partner should seek independent legal advice from a solicitor experienced in family law.
  3. Disclose all assets, debts, and financial details transparently.
  4. Negotiate and agree on the terms with your partner.
  5. Have your solicitors draft the agreement.
  6. Review, revise if necessary, and sign the agreement in the presence of witnesses.

Creating a prenuptial agreement is a wise step to safeguard your financial future and ensure clarity in your marriage. A well-drafted prenup addresses a range of issues, providing protection and setting clear expectations for both parties. Here are the essential elements you should consider including in your prenuptial agreement:

Protection of premarital assets

One of the primary functions of a prenup is to protect the assets each party brings into the marriage. This includes real estate, investments, savings, personal property, and any other valuable assets. By clearly listing these assets and specifying that they will remain separate property, you can prevent disputes over ownership should the marriage end in divorce.

Division of marital property

A crucial aspect of any prenuptial agreement is outlining how marital property will be divided in the event of a divorce. This includes assets acquired during the marriage, such as joint bank accounts, property, and investments. Defining the method of division, whether equitable or based on a specific formula, can help reduce conflict and ensure a fair distribution.

Debt management

Addressing debt responsibilities is vital to avoid future financial disputes. The prenup should specify how existing debts, such as student loans, credit card debts, and mortgages, as well as any debts incurred during the marriage, will be handled. This clarity helps protect each party from being unfairly burdened by the other’s financial liabilities.

Spousal maintenance

Including provisions for spousal maintenance can be beneficial where appropriate, particularly if one party may sacrifice career opportunities or earning potential to support the marriage or raise children. The prenup can detail the terms of spousal support, including the amount, duration, and conditions under which it will be provided. This provides financial security and sets clear expectations for both parties.

Protection of business interests

If you own a business or have a stake in a family business, it is crucial to protect these interests in your prenup. The agreement should outline how the business will be valued and treated in the event of a divorce, ensuring that you retain control and that the business remains protected from division or external claims.

Inheritance and family gifts

A prenuptial agreement should address how any anticipated inheritances or family gifts will be handled. By specifying that these assets will remain separate property, you can often protect them from division and ensure they are passed on according to your wishes.

Financial responsibilities during marriage

Setting clear guidelines for financial responsibilities during the marriage can help prevent misunderstandings and conflicts. The prenup should outline how expenses will be shared, the management of joint accounts, and how significant financial decisions will be made. This helps ensure both parties are on the same page regarding financial matters.

Retirement accounts and benefits

Retirement savings, pensions and benefits are important considerations in any prenuptial agreement. The prenup should specify how retirement accounts, pensions, and other benefits will be divided, ensuring that each party’s future financial security is protected.

Provisions for children from previous relationships

If either party has children from a previous relationship or this relationship, it is essential to include provisions that protect their financial interests. The prenup can outline child support obligations, educational expenses, and other financial needs, ensuring that these responsibilities are clearly defined and honoured. If children are born during the marriage, you should consider amending your prenup to include provision for your children and spouse in the event of a divorce.

Lifestyle clauses

Some prenuptial agreements include lifestyle clauses that address non-financial matters, such as pet ownership or specific lifestyle choices. These clauses can help set expectations and provide clarity on various aspects of married life.

Updating the agreement

Life circumstances can change significantly over time, so it’s important to regularly review your prenup.   This ensures that the prenup remains relevant and continues to protect both parties’ interests as their situations evolve.

In England and Wales, certain provisions cannot be included in a prenuptial agreement:

  1. Decisions regarding child arrangements and maintenance are not possible to predict at the time a pre nup is drafted.  Child arrangements are either agreed or determined by the court based on the child’s best interests at the time of the divorce.  Child maintenance is usually determined by the child maintenance service.  .
  2. Provisions that dictate personal lifestyle choices, such as weight gain, household chores, or social habits, are typically unenforceable.
  3. Any agreement that involves clauses regarding illegal activities or terms that violate public policy will be invalid and may invalidate the whole agreement
  4. Provisions that are excessively one-sided or made under duress may be disregarded by the court.
  5. While spousal maintenance can be included, courts retain the discretion to adjust maintenance provisions to ensure fairness.

If you sign a prenuptial agreement and then get divorced, the prenup will be reviewed and considered by the court. Here’s what typically happens:

  1. If the prenuptial agreement meets both parties’ needs, was entered into without duress, both parties provided full and drank disclosure and both parties received independent legal advice and it is viewed as fair, the court is likely to uphold its terms and enforce it.
  2. Assets will be divided according to the terms outlined in the prenup, protecting premarital property and specified financial arrangements.
  3. Any agreed-upon spousal support terms will be followed unless the court does not consider it meets needs or is unfair.
  4. Child maintenance is usually dealt with by the child maintenance service.   What happens if you don’t sign a prenup?

If you don’t sign a prenuptial agreement and then get divorced, the division of assets and financial arrangements will be determined in accordance with the law.  Various factors are taken in to account including  the length of the marriage, each party’s financial needs, and their contributions to the marriage when dividing marital assets equitably. If you can’t reach an agreement you may need to make an application to court for a Judge to decide the outcome.

Spousal maintenance may be ordered based on the financial circumstances and future needs of both parties. This process can be more unpredictable and potentially contentious compared to having a clear prenuptial agreement in place.

A prenuptial agreement lasts for the duration of the marriage unless it includes specific provisions that dictate otherwise. The terms outlined in the prenup will come into effect if the couple divorces or legally separates. In some cases, couples may include a sunset clause, which stipulates that the prenup will expire after a certain number of years or upon the occurrence of a specific event. Without such a clause, the prenup remains valid and enforceable for as long as the marriage lasts.


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