What cannot be included in a prenuptial agreement?

Whilst you probably don’t want to think about what will happen if your relationship ends when you are planning the wedding, getting a prenuptial agreement can protect you if the worst happens. But can you include everything? This article explains all.

If you have a family law issue and require legal advice to understand your options, contact specialist divorce solicitor Jemma Slavin of Stowe Family Law. Regional Director at this well-respected specialist family law firm, she is committed to offering a bespoke service to her clients which focuses on their specific needs and objectives.

There is no one general type of prenuptial agreement, because they are unique documents created with the individual couple and their assets at the centre. This can be beneficial for both parties, as it formally sets out the terms of the relationship before any issues arise.

What can be included in a prenuptial agreement?

The following are all things that can be included in a prenuptial agreement:

• Separate and jointly owned property, and an explanation of the difference if applicable
• Any debts that you or your spouse have
• Protections to retain any family property. This could include family heirlooms, for example
• Property distribution following divorce
• Descriptions of each spouse’s responsibilities
• Protection of inherited wealth, money, assets, or savings

What cannot be included in a prenuptial agreement?

The following cannot be included in a prenuptial agreement:

• Matters relating to anything illegal or unfair
• Decisions around child support or other parenting issues
• Disclaiming child maintenance
• Things that encourage divorce
• Lifestyle matters
• A sliding scale of differing outcomes depending on the reason for the breakdown of the marriage, for example, if the other party has an affair
• Anything that prejudices the needs of any children
• Items owned by other people, for example things borrowed from family or friends
• Money not yet received such as a potential inheritance
• Intangible assets, such as a business idea
• Any clause that could potentially restrict/direct one party’s behaviour upon separation

Who can enter into a prenuptial agreement?

For prenuptial agreements to be legally valid, both parties must enter into it voluntarily and fully disclose their financial situation and assets. But not all parties can enter into a prenuptial agreement, these are:

• People under the age of 18 cannot enter into any legally binding contracts, which would render any agreement void. Once they attain the age of 18, then they can legally enter into an agreement.
• Individuals who are deemed as ‘incapacitated’ and are unable to understand the terms or consequences of entering into an agreement would render it void. Anyone entering into a prenup must be able to comprehend its contents and any repercussions.
• Those who have been forced or otherwise coerced into signing a prenuptial agreement make it voidable. This means that the individual can choose to void it.
• People who do not have any legal representation during the preparation and signing of an agreement will lead to it being voidable.

If a prenup is found to be invalid or void, the court may still look at the parties finances and assets contained within it when deciding property division during divorce.

How do I discuss a prenup with my partner?

It doesn’t matter whether you are talking to your spouse, your parents or children, financial conversations are difficult. So, raising the subject of a prenuptial agreement when you’ve just paid the deposit to the caterer needs sensitive, rational, and honest handling. But you can use it as a way to build trust between you in a way that underpins your relationship rather than damaging it.

You should approach the subject openly and respect the other’s point of view and opinions. Be honest about why you think such an agreement is necessary. It is important to be open to negotiation and have a willingness to compromise in order to reach a fair agreement.

What are the benefits of entering into a prenuptial agreement?

Historically, prenuptial agreements were commonplace amongst celebs and the super-rich to protect their wealth. But prenups can benefit all marriages because it protects assets, business interests, inheritances, and investments. Even modest assets can be protected.

Broadly speaking, having a prenuptial agreement in place lets both spouses know what to expect if their marriage fails, which can help reduce the time and money otherwise spent arguing over Aunt Marion’s hideous wedding present that you both loathed.