Prenuptial Agreements

Are you considering protecting your wealth or your assets in the event that you divorce? If so, then you may be thinking about getting a pre-nuptial agreement (or ‘prenup’). But what is a pre-nuptial agreement? Why should I have one? Are they legally binding? How much do they cost? And what should I do if my partner asks me to sign a prenup? Keep reading for everything you need to know about prenups in our complete guide.

Why should I think about getting a prenup?

There are lots of situations where you may want to request a pre-nuptial agreement. These include:

  • There is a significant disparity in the wealth of you and your partner. If you have significantly more assets, you may want to ensure that these are protected if you divorce
  • You may have specific assets that you have inherited that you want to ensure stay in your family. For example, you may have inherited a property that has been in your family for a long time
  • You expect to have a successful career and you want to ensure you ring-fence the wealth generated by your success
  • You are entering a second marriage and you wish to protect assets in order that you can leave them to your children from a previous marriage
  • Your partner has substantial debt and you don’t want to be responsible for this if you divorce
  • You’re an overseas couple and you come from a country where pre-nuptial agreements are common.

It is not just wealthy couples that sign a pre-nuptial agreement. Based on the factors above many couples simply want to protect their assets for themselves or their family.

What are the advantages of having a prenup in place?

There are numerous advantages of having a pre-nuptial agreement in place when you marry:

1. Full disclosure

When you write a prenup you and your partner will have to provide full disclosure of assets, debts and income. This means that you will benefit from a clear idea of your joint financial position at the beginning of your marriage.

2. You can protect your assets

If you want to ensure that specific assets are protected and not divided in the event of a divorce, a prenup can help. For example, you may have received an inheritance or a precious family heirloom and want to exclude this from any division of assets if you divorce.

If you have children from a previous relationship then a prenup can also help you to ensure your assets are passed to them rather than being divided with your ex-spouse on divorce.

A prenup can also help you to protect assets that are difficult to split equally, for example valuable items or property.

3. Reduce stress on divorce

A divorce can be a complicated and combative process, and reaching an agreement can take a lot of time.

If you calmly agree how your finances will be divided at the start of your marriage through a prenup, you can avoid argument and conflict if you later divorce.

4. It can be cheaper

While you will have to pay to arrange a pre-nuptial agreement (see details of costs below), it will often be cheaper than having to hire a solicitor to undergo protracted negotiations to come to a financial agreement in the event of a divorce.

Divorce proceedings can be expensive, particularly if you don’t agree and there are a lot of assets involved.

5. Avoid paying debts that aren’t yours

While a prenup looks at how you divide assets, it will also look at how you divide debts.

If your partner has substantial debts, a prenup can ensure that you don’t have to use your assets to pay off those debts if you were to divorce.

6. Protect your business partners

If you have a small business or family business, you can help prevent disruption to the business through a prenup. The agreement can protect your share in such a business, and help you keep control of your company.

How do I get a pre-nuptial agreement?

A pre-nuptial agreement is a carefully crafted document, and both partners should take independent legal advice before signing such an agreement.

A prenup can take weeks or months to negotiate depending on your specific circumstances and how much negotiation is required. You should start early in order that the document can be signed well in advance of the wedding.

To ensure your prenup has the best chance of being considered by the court:

  • it should be drawn up by a qualified solicitor
  • you and your partner should each take independent legal advice to avoid a conflict of interest and to ensure you understand the implications of signing such an agreement
  • it should be signed at least 21 days before the wedding
  • there should be full disclosure of all assets, income and debts
  • both partners should enter into the agreement voluntarily and with no undue pressure
  • the terms of the agreement should be fair.

Your prenup should also be witnessed (see below).

Who can witness a prenup?

When you sign a pre-nuptial agreement, your signatures must be witnesses by two independent people (one for each partner).

These witnesses:

  • must not be members of your family
  • should be over the age of 18
  • should have full mental capacity
  • must sign the document and state their name, current address and occupation in the spaces provided.

What should a pre-nuptial agreement include?

Every couple’s situation is different and so no two pre-nuptial agreements will be the same.

When you start the prenup process, you should begin with a full disclosure of all your assets, debts and income. You can then work out what will happen to these assets in the event of a future divorce.

A pre-nuptial agreement should include:

  • assets such as property, pensions, savings and investments, shares, and interests in businesses
  • inheritances, either received or expected in the future

Your prenup should also contain provision for changes to your circumstances, such as ill health or the birth of children.

It must also ensure that the financial needs of any children are met in the event of divorce. If this is not included, the court may not uphold your pre-nuptial agreement.

Can a prenuptial agreement include arrangements for children?

Yes. As mentioned above, it must contain provision for the financial needs of any children otherwise the court could waive the agreement and make its own decision. A court is unlikely to support a prenup if its provisions are not in your child’s best interests.

The prenup can also set out residence and contact arrangements for any children in the event of your divorce, both from the current marriage and any previous relationships.

Can I change the contents of a pre-nuptial agreement at a later date?

Yes. Any pre-nuptial agreement can be changed with the agreement and voluntary consent of both parties.

Indeed, it is recommended that you review your arrangement on a regular basis to ensure it remains appropriate to your circumstances. If you later have children or your financial situation has changed, it may be necessary to make changes to your prenup.

How much does a prenup cost?

The cost of setting up a pre-nuptial agreement will depend on how complex your assets are and the value of any property or assets to be included.

A straightforward pre-nup prepared by a reputable firm of solicitors should cost around £1,500 to £5,000 plus VAT.

Prenups including business assets and overseas arrangements that require significant disclosure are likely to cost more – perhaps £10,000 or more.

How should I approach my partner about signing a pre-nuptial agreement?

If you want your partner to sign a pre-nuptial agreement, then it’s important that you remove any emotion from the conversation.

You need to stress that it’s a sensible and honest move, especially if one of you has children from a previous relationship, personal assets or debts, or if you own a business.

Explain to your partner that a prenup benefits you both, as you can take control of how your assets will be shared in the event of a divorce. Help them to understand that not signing an agreement could lead to a court deciding how to allocate assets on divorce, and this can lead to an outcome that neither of you are satisfied with.

It’s also a good idea to raise the idea of a prenup early in your wedding preparations. Not only should the document be signed 21 days before the wedding, but you may both become more stressed and have less time to consider the implications as the big day nears.

If you are discussing joint financial arrangements prior to the wedding – perhaps you’re opening a joint bank account – then this may be the perfect time to raise the idea of a prenup.

What do I do if my partner asks me to sign a pre-nuptial agreement?

If your partner asks you to sign a prenup you should not immediately assume that they are not committed to the marriage or think that it is doomed to fail.

Prenups can generate honesty and transparency in a relationship and can actually benefit you both.

Always take independent legal advice to make sure the agreement is fair and that you understand the consequences of signing the agreement. If you don’t think it is fair, ask your solicitor to negotiate the contents of the prenup for you.

If your partner is the one who is in charge of the process, it’s reasonable to expect them to pay for your solicitor.

What do I do if my partner won’t sign the prenup?

You cannot force your partner to sign a prenup, as one of the conditions a court will consider is whether they entered into the agreement freely and voluntarily.

Many people don’t sign a prenup as they believe that their partner doesn’t trust them. So, having the right conversations (as noted above) can help you to overcome any concerns.

If your partner still refuses to sign a pre-nuptial agreement, then you have to decide whether you are prepared to go through with the marriage with no such agreement in place.

What is the court’s position on pre-nuptial agreements?

In the past, pre-nuptial agreements have been unenforceable in British courts.

However, in 2010 the Supreme Court case of Radmacher v Granatino held that courts should consider a prenup if it is voluntarily entered in to with a full understanding of its implications, unless it would be unfair to hold the parties to the agreement in their current circumstances.

Note that this ruling does not mean that pre-nuptial agreements will be upheld in every case. However, it does mean that the court will consider a prenup if three factors are satisfied:

  1. Both parties must fully appreciate the implications of the pre-nuptial agreement. This means that full disclosure must have been made. So, if you didn’t disclose all your assets before the agreement was signed by both parties, your partner may not have been in a position to give fully informed consent, and the court may not uphold the agreement.
  2. You must both freely enter into the agreement. You must have taken independent legal advice and have full mental capacity. If the court finds that one of you was under undue influence, they may not uphold the agreement.
  3. The outcome must be fair for both parties in the circumstances prevailing. For example, you may have been married a long time and never updated your prenup. If your financial circumstances have changed significantly it could mean that the agreement you signed is no longer fair.

In addition, you must have signed the pre-nuptial agreement more than 21 days before your marriage.

Finally, the prenup must not prejudice the financial needs of your children.

What can invalidate a pre-nuptial agreement?

There are several situations where a pre-nuptial agreement could be invalid, and so not upheld by a court. These include:

  • where you signed it within 21 days of your wedding
  • where it is a ‘verbal’ contract. You must write your prenup down, sign it and have it independently witnessed
  • where you signed under undue influence. For example, you didn’t receive enough time to consider the contents of the agreement
  • if full disclosure does not take place.

Is a pre-nuptial agreement legally binding in the UK?

No. Pre-nuptial agreements are not legally binding in the UK, but that does not mean a court will not consider a prenup and uphold the wishes as detailed in the agreement.

Since a Supreme Court ruling in 2010 (see above) a court is now much more likely to consider a prenup assuming that:

  • you entered into it freely
  • you had access to all the information you needed to sign the agreement (full disclosure of all assets)
  • you intend that the agreement will be upheld and that your assets will be divided in this way
  • you were not under undue influence when you signed
  • the agreement addresses assets and property you acquired before you married
  • it takes the financial needs of your children into account
  • it remains fair for your current circumstances.

You should also sign it more than 21 days before your wedding and have taken independent legal advice.

How do I enforce a pre-nuptial agreement?

When you divorce, you and your ex-spouse will need to agree to uphold the terms of the pre-nuptial agreement that is in place. You can also agree to change the terms if you both feel this is fair.

If you want to uphold the prenup and your ex-spouse does not, the court will have to decide whether it should be implemented or not.

When the court comes to consider whether to uphold your agreement, they will need to be satisfied that:

  • the agreement was fair at the time you both signed it
  • there was full financial disclosure prior to signing the agreement
  • you both took independent legal advice, so you knew the implications of entering into the agreement
  • both of you had the mental capacity to sign, and you were not pressured into signing
  • you signed the agreement 21 days or more before the wedding
  • it makes financial provision for any dependent children
  • your circumstances have not changed to the degree that the agreement is no longer fair.

A court may refuse to enforce a pre-nuptial agreement if there has been a change in your circumstances that renders it unfair or inappropriate. This is why it is important that you review and update your prenup on a regular basis, or when your situation changes (for example, if you change jobs, have children, or receive an inheritance).

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