‘If you are considering a prenup, or simply want to understand more about them, it is important to separate fact from fiction,’ says Samantha Hulse, Partner and Head of Family Law with QualitySolicitors Parkinson Wright. ‘Speaking with a matrimonial solicitor is a good idea, as this will help you to understand how they work, whether it will help meet your objectives and enable you to make informed decisions.’
Samantha highlights some common myths about prenups put forward by scriptwriters, and explains the reality.
Myth 1 - a prenup is only for the rich and famous
It is easy to see why this myth is perpetuated, when only high-profile prenup cases hit the headlines, and when TV show characters embroiled in a prenup storyline are usually very rich or in the public eye.
However, prenups can be for everyone regardless of wealth and status. A prenup can be a practical step for anyone getting married or entering a civil partnership, especially if they have existing assets, financial responsibilities, business interests, or specific expectations, such as an inheritance.
Myth 2 - you can sign the prenup the night before your wedding
A popular occurrence in a drama is one partner springing a prenup on the other on the night before their wedding, often leading to tears and rushed signatures. Or there may have been ongoing negotiations over the terms of the prenup, which only gets signed on the eve of the wedding.
The reality is that a prenup should be signed at least 28 days before the wedding day, otherwise it may be declared invalid. This helps to ensure both parties have had ample opportunity to consider and take legal advice before considering whether to sign the document. This in turn eliminates the risk of a future argument about one party not knowing what they were signing up to. Ideally, the discussions should begin several months before the planned wedding day.
Myth 3 - I have to sign it
TV Drama Shows where the agreement is signed at the last minute also give the impression that the agreement has to be signed.
However, there is no legal obligation to do so. A prenup is, by its very nature, an agreement which both parties have to voluntarily and willingly enter into. If one party does not wish to sign, they should not be coerced, manipulated or forced into signing. That would amount to duress and could lead to the prenup being declared invalid by the courts in the future.
Myth 4 - we can write our own prenup
Another dramatic scene is where a couple, usually impromptu, write up their prenup on the back of a napkin. They do not think about taking any legal advice and skip off into the sunset. Then, cut to a later scene where they are battling out a bitter and expensive divorce in the courts as a result.
For a prenup to be considered valid, it is important that each person has received independent legal advice, and that there has been full disclosure of each person’s finances and assets prior to the agreement being signed. A DIY prenup, or a completed template downloaded from the internet, is unlikely to meet these requirements and may be easily challenged or disregarded altogether in the event of a divorce.
Myth 5 - a prenup is not valid in court anyway
Currently prenuptial agreements in England and Wales are not automatically legally binding, but following a UK Supreme Court decision in 2010 it was confirmed that the courts will give ‘decisive weight’ to a properly prepared prenup.
Some of the conditions to be met include:
- The agreement being signed at least 28 days before the wedding;
- the agreement must have been freely entered into by both parties and neither party should be placed under pressure or duress to sign the agreement;
- each party must have received full disclosure of the other’s financial position;
- independent legal advice should be obtained by both parties; and
- the agreement must not be unfair to either party at the time of divorce.
If your prenup meets all of the necessary criteria, at the time of any divorce, the court will take it into careful consideration. Of course, if circumstances have significantly changed since the signing of the prenup, the court will have to ensure any decision remains fair and just.
Myth 6 - a prenup is expensive
Understandably, you will want to know exactly what a prenup will cost, and TV shows and popular culture give an unrealistic idea of the cost when ultra-wealthy characters turn to celebrity lawyers.
In reality, the cost of a prenuptial agreement is a small fraction of what it might save you in the event of a divorce, which could extend to thousands, if not tens or hundreds of thousands of pounds, in the long run.
Your family lawyer will ensure that:
- the agreement complies with legal standards;
- both parties fully understand what they are agreeing to;
- full and frank financial disclosure has taken place; and
- no undue pressure has been applied.
Without professional advice, even the most well-intentioned agreement may be unenforceable.
How we can help
Whether you are looking to protect family assets, secure the future of your children, or simply plan responsibly for your marriage, we are here to guide you through the process of putting together a prenuptial agreement.
For further information, please contact Samantha Hulse or a member of the family law team on 01905 721600 or via email worcester@parkinsonwright.co.uk
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.