Will a prenup protect me if I get a divorce?

Can a prenuptial agreement protect you during a divorce?

If you’re the person getting a prenup set up to protect your assets, the answer is usually yes.

UK law has a complex approach to prenups, but as long as you’ve taken steps to ensure your prenup is legally-sound and was drawn up fairly, it should be upheld by a court.

A prenuptial agreement is legal document which simplifies and sets out how assets are split if a couple split up. They’re common practice in the US, especially for wealthy people who are concerned that they may lose half – or more – of their assets if they get divorced.

A prenuptial agreement will usually be drawn up to protect the wealthier spouse, although this can raise questions about how fair this is for the other spouse, who might not have savings or an income to support themselves after the marriage ends.

Are UK prenups legally binding?

Usually, yes – however, there are several caveats. Even though UK courts recognise prenuptial agreements, they can also veto any agreement within the prenup if any part of the agreement is unfair or discriminatory towards any children.

Judges are also wary of prenuptial agreements being ‘forced’ upon partners who weren’t happy with the implications, but didn’t feel as if they could say no. If it becomes clear that a prenup was signed under coercion, or one of the spouses was suffering from poor mental health at the time, this can sometimes raise enough reasonable doubt for a judge to question the validity of the prenup.

However, it can be notoriously difficult to prove such circumstances and can drag cases out, leading to spiralling legal costs.

Can a prenup be contested during a divorce?

Yes – it is possible to contest a prenuptial agreement. However, there need to be legitimate reasons for a judge to consider this. Agreements which could be contested may meet one or more of the following criteria:

  • Children of the marriage are treated unfairly (as mentioned above)
  • An agreement which was signed when one party was mentally ill, or under coercion (as mentioned above)
  • If it can be proven that one or both people didn’t completely understand the implications of the agreement

In addition to this, the prenup must have been drawn up at least 21 days before the marriage and each spouse must disclose any debts, along with assets. An agreement with faked signatures or changes to the text after signing will also invalidate the prenup.

How do prenups in the UK work?

If you and your partner are looking to draw up a prenuptial agreement, you should seek legal advice to make sure any document you both sign is legally binding.

You will be asked to list all of your collective financial assets; including property bonds, savings, and investments, then the agreement will state how they will be divided between you if you decide to divorce.

It’s up to both of you how you choose to split your assets. A 50/50 arrangement is considered normal if both spouses are entering the marriage with equal assets, but a prenup allows you to make more specific arrangements if one of you is wealthier than the other, and wants to protect this wealth.

Once your solicitor has the full picture, they will be able to draw up the document that will form your prenup.

Can anything invalidate a prenup in the course of a marriage?

There are several reasons why a prenup might be declared invalid. The following reasons below are not exhaustive; if you have any questions, it’s best to seek legal advice.

  • If a judge can prove that one party was coerced into signing the prenup, they were mentally ill when they
  • did, or that one or both people didn’t understand what they were signing
  • If the prenup contains nonsensical requirements that could be seen to control or demean a spouse
  • If you signed without proper legal representation and you didn’t seek legal advice throughout the process
  • If one or both of you didn’t fully disclose your assets – and the debts you have
  • If the paperwork wasn’t filed properly or was poorly drafted

Alternatively, it is possible to legally amend a prenup during the marriage. Some couples do this if financial circumstances change, such as the original breadwinner of the household no longer being the highest earner.

How can I set up a legal prenuptial agreement?

After you and your partner have agreed how your assets are to be split, you will need to contact your solicitor to draw up the prenup.

It’s also advisable for each of you to get separate legal advice. This way both parties can clearly understand and enter into the agreement with confidence, knowing what will happen in the event of a divorce.

How much do prenups cost to set up?

Costs to set up a prenup can vary, as with any legal service.

Cheaper services could be perfect for some couples, but a prenuptial agreement can be an incredibly sensitive arrangement to negotiate that can take time, so a quick ‘up front’ cost service might not be appropriate.

If a prenup isn’t handled correctly in the first instance, this can lead to further unforeseen costs, or could even mean the prenup is invalid.

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