What is a prenuptial agreement?

In England and Wales, a prenuptial agreement, also known as a ‘prenup’, is a legal agreement made by a couple before they get married or enter into a civil partnership. It sets out how their assets, property, and finances would be divided in the event of a divorce or separation.

The main purpose of a prenuptial agreement is to provide clarity and protection for both people involved. It allows couples to make decisions about their finances and assets in a fair and transparent way, rather than relying solely on the legal procedures in place for divorce, which are clouded by uncertainty.

In a prenuptial agreement, couples can outline how their assets and debts should be divided if they separate in the future. They can also include any special arrangements for property, businesses, or investments. This is also known as ‘ring-fencing’ certain assets. The agreement may address issues such as spousal maintenance, division of joint bank accounts, and ownership of properties acquired before and during the marriage or civil partnership.

Are prenuptial agreements legally enforceable?

It's important to note that prenuptial agreements are not automatically legally binding in England and Wales. However, they are given significant weight by the courts, especially if they are fair and both people entered into the agreement willingly, with full understanding, mental capacity, and without any external pressure.

To give weight to a prenuptial agreement, both people must provide full financial disclosure and seek independent legal advice and must not have agreed to a prenup within 28 days immediately before the marriage or civil partnership ceremony. It is recommended to consult with a solicitor who specialises in family law to draft and review the agreement to make sure that it meets the necessary legal requirements and protects the interests of both individuals.

While prenuptial agreements can provide guidance and security, it's also important to remember that they cannot override the courts' power to make decisions based on what is deemed fair in each specific case. There is no defined formula for dividing assets on divorce or dissolution, and a judge will always consider the welfare and needs of any children involved as a top priority.

In short, if there’s not enough to go around to meet the needs of both people and any children, then assets that have been ringfenced for one person in the prenuptial agreement, may have to be shared as part of the divorce/ dissolution settlement.

Prenups through mediation

Prenuptial agreements don’t have to be drawn up through expensive legal battles. Many couples choose to create theirs through mediation, where both people work with a neutral third party to discuss and agree on the terms. This approach encourages open, honest conversations and can feel less formal and confrontational than going through solicitors right away.

Once you've reached an agreement via mediation, the next step is for each of you to get independent legal advice before signing. This helps ensure that the prenup stands up in court, if ever needed. Mediation can be especially helpful when there’s a power imbalance or sensitive topics to cover, like family businesses or children from previous relationships. It’s a collaborative way to protect your future while staying focused on the relationship itself.

Prenups around the world

Prenuptial agreements aren’t treated the same everywhere, and if you or your partner have international ties, it’s worth knowing the differences. In England and Wales, prenups aren’t automatically legally binding, but they can be upheld if they’re seen as fair, both parties received independent legal advice, and there was full financial disclosure.

In contrast, Scotland takes a firmer stance: prenups are generally enforceable provided they're properly drafted and signed. In countries like France, Germany, or many parts of the USA, prenups often carry more legal weight and are more commonly used. This means that if you're living abroad or planning to move, your prenup may be treated differently depending on where you are. It’s always a good idea to seek local legal guidance if your situation crosses borders.

Read more about how to protect your finances during divorce, or learn if inheritance is included in divorce

Summary: What is a prenuptial agreement?

Prenuptial agreements are becoming increasingly common in England and Wales as a way for couples to outline how their assets and finances would be divided if their relationship were to end. Whilst not automatically legally binding, they are viewed as persuasive evidence in court proceedings and provide a level of financial certainty as well as reduce potential conflicts if divorce or dissolution proceedings were to unfold in the future.

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What is a prenuptial agreement? FAQs

Are prenuptial agreements binding in the UK?

Prenuptial agreements are not strictly binding but are considered persuasive by the courts in England and Wales. This means that while a prenuptial agreement can carry significant weight in legal proceedings, it is ultimately up to the court's discretion to decide whether to enforce it or not.

How much does a prenuptial agreement cost in the UK?

Generally, the cost can range from around £1000 to £3000, however, it depends on the complexity of the prenup and who drafts it. For a straightforward prenuptial agreement, where both people have relatively simple financial situations and agree, the cost is likely to be at the lower end of the spectrum.

Can a prenuptial agreement be overturned?

Yes, a prenuptial agreement can be overturned or not fully enforced by the courts in England and Wales under certain circumstances. The courts take into account factors such as whether each person has sought legal advice prior to signing the prenup; whether both people have fully disclosed their finances; whether there was any undue pressure; and whether the prenuptial agreement is fair and reasonable.

Can I get a prenuptial agreement after marriage?

You can get a postnuptial agreement (also known as a post-marital agreement) after marriage which is very similar to a prenup. Prenuptial agreements are used for outlining assets, and how they are to be divided on divorce.