Although you don’t get married expecting it to end, some couples plan for every eventuality. In fact, around one in five married couples have a prenuptial agreement in place. Because each prenup is created for a specific couple, every one is different.
As a prenup is a bespoke document, it is important to understand what can and cannot be included. This guide from Davisons Law breaks down what you can put in a prenuptial agreement and what will not be allowed.
What is a prenuptial agreement?
A prenuptial agreement, or prenup, is a legal agreement created before marriage. It aims to establish financial clarity for a couple, setting out how their assets, savings, debts and property would be divided if they were to divorce.
What can be included in a prenuptial agreement?
A prenup’s main purpose is to set out financial matters. Most UK prenups cover the following.
The assets to be divided. A prenup contains a detailed list of each party’s assets, inheritances and debts at the time of marriage, such as property, savings, pensions, business interests and valuable possessions. It sets out how those assets will be treated on divorce, whether each party keeps their own or they are split equally.
Protection of pre-marital property. Couples usually agree that assets owned by one person before the marriage remain theirs on divorce. For example, if one spouse owned the house before marriage, the prenup can confirm that the other cannot claim a share of it.
Treatment of assets acquired during the marriage. A prenup can address assets acquired together, such as a house bought during the marriage, so there is a plan in place rather than leaving it to future negotiation or court intervention.
Future earnings and investments. A prenup can also cover future assets or earnings, for example where one spouse expects a large inheritance or has a growing business. It can set out how those future gains will be handled. Equally, if one partner supported the other through higher education, the agreement can outline what financial return might follow.
Debts. Debts should be set out in the prenup so that each party remains responsible for any debt they bring into the marriage, such as a student loan, as well as debts taken on during it.
Spousal maintenance provisions. A prenup can state whether either spouse will pay maintenance to the other and, if so, how much and for how long. The courts retain discretion over maintenance, but a prior agreement carries weight. A prenup can either waive spousal support on divorce or set an agreed amount, and if it is considered fair to both sides it is likely to be accepted.
What cannot be included in a prenuptial agreement?
A prenup cannot be used to impose decisions on non-financial matters, or to override the law’s protection of either party or any children. The following cannot go in a prenup.
Child arrangements. A prenup cannot affect matters concerning children, such as who a child lives with or how much child maintenance is paid. In the UK, arrangements for children are decided at the time of separation, based on the best interests of the child, so you cannot state in a prenup who will look after a child if you divorce.
Personal clauses. A prenup cannot set out personal expectations or day-to-day arrangements, such as who does the chores or makes family decisions. The same applies to moral issues, such as a clause about infidelity.
Anything illegal. A prenup cannot include terms that are illegal or that breach public policy. For example, a clause requiring one spouse to pay the other a large fee if they want a divorce would undermine the status of marriage and would be rejected by the courts.
Removing the court’s jurisdiction. A prenup cannot remove the family court’s power to oversee fairness. On divorce, the court will consider all the circumstances and ensure a fair outcome, particularly around financial needs and the needs of any children. The Law Commission has said prenups should only be binding once both parties’ needs and all responsibilities towards any children have been met. This means you cannot include a clause that would leave one spouse in financial hardship while the other is provided for.
Unfair clauses. Fairness is central to a prenup. A clause that is heavily one-sided will not be enforceable, for example one that gives one spouse all the assets and the other none, or one that tries to exclude a future inheritance claim without providing anything in return. These would be treated as unfair and would not be upheld by a court.
In summary
In short, clauses in a prenup that deal with finances and assets are generally acceptable, as long as they are legal and fair. A prenup is a financial contract, so its contents should only cover financial matters.
How Davisons Law can help
If you are thinking about a prenup and are unsure what you can and cannot include, get in touch with our family law team at Davisons Law. Our legal experts can advise you on what to include and guide you through the process. Call today on 0808 3036 987 and a member of the team will be in touch.
