Have you recently said I do? If the answer is a resounding yes, it probably won’t be long till you dive into wedding planning. Date, venue, theme, DJ or live band, sweetie buffet or a doughnut wall; choices, choices, choices.
While it is easy to get swept up in the small details of a wedding– linen or silk napkins, limousine or Lamborghini wedding transport (ok, those ones are not so small). It’s important to remember that a marriage is more than just the wedding and consider plans that are less about the big day and more about your future.
Prenups, aka prenuptial agreements, were once the preserve of the wildly rich and or famous. However, it is a myth that they are only of benefit to those who don’t need to ask how expensive something is or can say, “Don’t you know who I am” without irony.
What is a prenup
Let’s start at the beginning. A prenuptial agreement is a legal document or contract drawn between two people before their marriage. It will typically list each individual’s assets and debts and how they should be distributed in the event of the marriage ending.
Most prenups will typically include premium bonds, investments, premarital property and income. Once the list is complete, decisions need to be made on whether the items will be split equally or which individual will have sole ownership.
Is it a bad sign if my partner wants one?
There is a common misconception that one or both parties wanting a prenup is a red flag of the longevity or authenticity of a relationship. A prenup can seem like it is based on mistrust; after all, why would you make plans for who gets what if you will be together forever? The reality is much more complex than that.
One reason for the increased popularity of prenups is the average age of marriage. In 2021 the average age of marriage for women was 35, compared to 24 in the 1970s. The rising age of marriage means people are coming into married life with more personal assets than ever before.
It is easy to see a prenup as paperwork for a future divorce settlement. However, a better way to frame it is a written contract centred on trust, expectations and both parties’ financial future. It provides the opportunity to have a frank and honest discussion about the expectations of marriage and the financial issues that come along with it. While the division of assets is the most common part of a prenup, it is not the only thing that it can include.
What else can be in prenup agreements?
Future responsibilities can also be part of a prenuptial agreement. This could mean deciding the split of mortgage and utility bills, how children from previous relationships will be provided for and even stipulations that pre-existing debt is an individual responsibility rather than a joint one.
Are children included in a prenup?
As already mentioned, providing for existing children can be included in a prenup. What can not be part of one is lifestyle choices such as what school children should attend or what religion they should follow. Future arrangements for custody of children or child support, should the marriage break down, are not allowed.
General personal matters are also not allowed to be included, so if you had hopes of crafting a legally binding document that prevents your future spouse from bringing marmite into the house, you are out of luck!
What makes a prenup legally binding
Prenuptial agreements are not automatically legally binding, but a court will uphold them if certain requirements are met.
These include:
- The agreement must have been made 28 days before the wedding
- Both parties had access to legal advice
- The agreement is fair
- Both parties fully understand the agreement
- Both parties have received a fully disclosed list of the other assets
To ensure that the agreement will be considered valid, consult with a family law specialist who can guide you through the process and help cover all your legal bases.
Prenuptial versus postnuptial
Once agreed upon and signed, a prenuptial agreement is valid until the marriage ends. Once you are married, you can update the agreement, but quite rightly, the consent of both parties is required.
If you got married without a prenup but can now see the benefit of one, a postnuptial agreement would be what you are looking for. These are especially popular if a couple has decided to start a family business together or when a couple has separated and gotten back together. It can also be used to strengthen a prenuptial agreement in the eyes of the court, for example, if the prenup was signed less than 28 days before the wedding.
Hopefully, after reading this, you will be less intimidated by the options a prenuptial agreement offers. The biggest takeaway is not to see it as a harbinger of divorce but instead as a clearly laid out plan that documents future and current responsibilities.