Is a prenup part of your wedding planning?

Hotels and wedding venues are busy hosting wedding fairs and gearing up for the wedding season, with everyone focused on the details of the big day, from the colour scheme and menu to the choice of attendants and music. One other thing which now appears on a wedding checklist is discussion of a prenuptial agreement, especially when it is a second marriage, if there are business interests, where the ‘Bank of Mum & Dad’ is helping with a deposit for a property or where one party will be introducing significant assets into the marriage which have been acquired prior to the relationship.

Nobody plans a wedding with separation in mind, but according to the Office for National Statistics, in 2021 the most common duration of marriage for opposite-sex couples was 8 years, for male same-sex couples it was 5 years; and for female same-sex couples it was 4 years. A prenuptial agreement should not be viewed as ‘unromantic’ or otherwise, rather a pragmatic means of providing clarity for couples as to the division of specific assets in the event of separation in future.

Since the Supreme Court’s landmark decision in Radmacher v Granatino, prenuptial agreements can now be given significant weight under UK law, and will be enforceable provided certain conditions are met.  Courts can, however, still disregard them in certain circumstances if they are felt to be unfair – for example, if the children of a marriage are likely to suffer if the terms of the prenuptial agreement are upheld owing to the terms not being sufficient to meet basic needs moving forward.

In deciding what is fair, the court will apply the three-stage test set out in Radmacher. This means:

• the agreement must be freely entered into;
• the parties must totally understand the implications of the agreement they are entering into;
• the prevailing circumstances must be contemplated when assessing whether it is fair to hold the parties to their agreement.

What could the pre-nuptial agreement include?

It is completely up to you and your future spouse what terms are written into the prenuptial agreement, but could include clauses covering:

• what happens to the family home and any other property you may own;
• how money in your bank accounts should be divided;
• how debts should be dealt with;
• what happens to a family business;
• who your children will live with and any financial maintenance;
• whether one spouse should be allowed to keep inherited wealth;
• what happens to your pets; and
• how personal belongings you bought together, such as cars and furniture, should be allocated.