Prenuptial agreements, known as ‘prenups’ have become a recurring theme in television dramas, reality shows and films, often depicted as business contracts intended to protect a wealthy spouse from losing their fortune in a messy divorce. While these portrayals are entertaining, they often misrepresent the true nature and purpose of a prenuptial agreement under the law in England and Wales.
‘If you are considering a prenup, or just want to learn more about them, it is important to separate fact from fiction,’ says Manda Toms, a Partner in the family law team at Nalders. ‘Getting advice from a matrimonial solicitor will help you to understand how the process works, decide whether it suits your circumstances and enable you to make informed decisions.’
Manda outlines some common myths about prenups put forward by scriptwriters and the reality behind them.
Myth 1: a prenup is only for the rich and famous
High-profile cases often dominate the headlines and TV show characters, embroiled in a prenup storyline, are usually very rich or in the public eye. This feeds the idea that prenups are only for celebrities or the wealthy.
In reality, anyone entering into a marriage or civil partnership could benefit from one, 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 TV 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.
However, in reality, a prenup should be signed at least 28 days before the wedding day, otherwise it may be declared invalid. This ensures both parties have time to to consider the terms and seek legal advice before signing the document. This eliminates the risk of a future argument about one party not knowing what they were signing up to. Ideally, discussions should begin several months in advance.
Myth 3: I have to sign it
TV dramas, where the agreement is signed at the last minute, also give the impression that the agreement has to be signed.
There is no legal obligation to sign a prenup. Both parties must enter into the agreement voluntarily and willingly. If a party is pressured, coerced, manipulated or forced to sign, the courts may declare the agreement invalid.
Myth 4: we can write our own prenup
Another dramatic scene that occurs on screen 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. 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. However, 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 must have been freely entered into by both parties;
- 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 Manda Toms in the family law team on 01872 241414 or email mbt@nalders.co.uk. Nalders LLP has offices in Truro, St Austell, Falmouth, Newquay, Camborne, Helston and Penzance, Cornwall.
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.