The number of couples deciding to protect their assets before getting married with a prenuptial agreement is growing year on year. But can you write your own prenup, and, if so, is it legally binding? We look at the issues.
The number of couples deciding to protect their assets before getting married with a prenuptial agreement is growing year on year. But can you write your own prenup, and, if so, is it legally binding? We look at the issues.
If you have concerns about your family law situation and you feel you need legal advice, contact specialist family solicitor Helen Miller of Stowe Family Law. She is an exceptionally skilled family law expert with over 20 years’ experience, and Managing Partner at this well known specialist family law firm.
What makes a prenup legally binding?
For the court to consider the terms of a prenup binding on the parties, certain criteria must be adhered to, anything less and it will probably be deemed unenforceable, with the court falling back on section 25 of the Matrimonial Causes Act 1973 to govern the division of assets.
The relevant criteria for a binding prenup are:
- Full disclosure should be made by both parties in respect of their financial circumstances. This includes listing all individually and jointly owned assets, such as property, savings, and investments. You will also need to declare what debts you both have upon entering the marriage.
- The prenup must be freely entered into without duress or undue influence by the other party or their family
- Both parties must understand the legal implications of the agreement, and must take independent legal advice in this regard
- The agreement must be contractually valid – e.g. signed and witnessed in accordance with the rules
- The prenup must be fair and both parties needs must be met
- It should not prejudice any children, such as stating where and who they will live with
- Ideally, the prenup should contain a review clause setting out a timeframe where the terms are revisited and amended if necessary. A sensible period for reviewing a prenup is every five years, and should take into account changes in circumstances during that time. This may include the birth of a child, a major change in assets, or the receipt of an inheritance. The prenup can be updated to reflect such changes. Failure to review an agreement, coupled with changes in circumstances during the marriage, is likely to significantly weaken the prenup.
- A prenup should be drawn up at least 28 days before the wedding takes place.
It is important to note that even properly drafted prenuptial agreements are not legally binding in the UK. The court retains its powers to reject the agreement in subsequent divorce proceedings and will therefore apply section 25 of the MCA 1973 instead.
Why do people consider writing their own prenups?
There are many reasons a couple might consider writing their own prenup, but here are the most common:
- To save money – although you may think you are saving money by writing it yourself, it can end up costing you thousands more in legal fees and in a divorce settlement if the prenup you drafted is found to be invalid. As prenups are not technically legally binding, you need to ensure you have done everything necessary to make it enforceable in court. A judge scrutinising your agreement will quickly be able to tell that it hasn’t been drafted by a solicitor. This is likely to invalidate your agreement and could have other consequences.
- To avoid solicitors – this is understandable, particularly if one party is concerned they have produced a one-sided document and don’t want to be found out. To ensure the fairness and future enforceability of the agreement, the expertise of a family law solicitor is crucial. For a prenup to be enforceable, both parties must have received independent legal advice. If you are writing your own prenup, the chances are that neither party has received this advice, which again could invalidate your agreement. A judge will insist on this before even looking at the terms of the prenup.
- Doing it quicker – whilst you may think it’s quicker to knock up a quick draft on your laptop or use an online template, essential things are often missed because there is no one size fits all. Drafting a prenup yourself may mean you miss out specific legal clauses regarding property, pensions, savings, inheritance, businesses, etc. Solicitors examine both parties finances and make sure all the i’s are dotted and the t’s crossed so that the prenup is enforceable should it be needed in the future.
What are the reasons I shouldn’t write my own prenup?
Whilst couples are perfectly entitled to draft their own prenuptial agreement, the question you should really ask yourself is should you write your own prenup? Although we may be able to change a washer on a tap or install a new light switch with the help of YouTube videos, we often pay professionals to do these jobs because they know what they’re doing. The same applies to legal agreements.
Here are our reasons it might not be a good idea to draft your own prenup:
- Lack of legal knowledge – creating a legally binding document like a prenup requires a good understanding of the law, including the requirements for validity enforceability, and potential challenges.
- Mistakes and errors – without proper legal guidance, there is a real risk of mistakes being made or including provisions that are unenforceable or invalid, which may render the whole agreement useless
- Limited scope – writing your own prenuptial agreement may lead to important legal issues being overlooked or failure to consider all relevant assets and liabilities which may affect the division of property in a divorce
- Imbalanced provisions – a prenup is meant to be fair and balanced between both parties. Without professional guidance, there is a risk of creating an agreement that is one-sided, unfair, or overreaching
- Potential invalidation – if the prenup is not properly executed, or if it fails to meet certain legal requirements, such as obtaining individual legal advice, it may be invalidated by a court, making it unenforceable in the event of a divorce.
What cannot be included in a prenup?
Some things a prenuptial agreement cannot deal with include:
- Changing child support payment circumstances beyond that which is covered by law. These payments are a right of the child and therefore not included in the contract between two parents.
- Arrangements setting out where the child will live. If this is in dispute, it must be determined by the court.
- Unfair or unreasonable terms
- Illogical or contradictory statements or requests that are against public policy
- Lifestyle clauses, including things such as who carries out the household chores, or what happens in the case of infidelity.
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