Pre-marital Agreements: How to Protect Your Assets

Sarah Robson
Sarah Robson

Published: May 22nd, 2023

5 min

It may not be the most romantic consideration when you're in the process of planning a wedding, but many couples want to create certainty as to what will happen with their assets should they divorce.

Here, one of our Associate Solicitors, Sarah Robson, looks at the benefits of having such an agreement.

A pre-marital agreement, also known as a pre-nuptial agreement (pre-nup) is a legal document drawn up by a couple before their marriage to set out how their assets will be divided should they divorce. They are most commonly used where one party to the marriage has greater assets than the other party and seeks to protect those assets should the marriage break down. With an estimated 42% of marriages ending in divorce it's well worth considering. A pre-nup can assist with:

  • Protecting assets acquired before the marriage

  • Protecting business interests

  • Protecting your assets should your partner have debts

  • Ensuring your children are provided for - including those from a previous relationship

  • Set out how your assets and debt will be divided should you divorce

  • Set out what financial provision you will make for each other should you divorce.

If you have significant assets acquired prior to your relationship and marriage there is no guarantee that these will be protected on divorce, due to the established principles in family law of sharing and meeting "needs". If you have a significant pension that has been accrued prior to the marriage you may wish to protect this. Again in the absence of a pre-nup your pre-marital pension would be at risk should you divorce.

If you are a shareholder in a limited company, established well before the marriage, you may seek to protect this and agree that this will not be considered a "marital asset" on divorce.

A pre-nup needs to be tailored to your individual circumstances but will often include:

  • Property held in your sole name, or in joint names

  • Savings/ISAs/premium bonds

  • Business interests

  • Pensions

  • Inherited wealth and gifts

  • Future earnings.

Whilst pre-nups are not legally binding in the UK they are becoming more accepted by the courts when couples divorce. To ensure your agreement will be followed by the Courts there are certain aspects that need to be followed:

  • The agreement must be valid - entered into freely and willingly by both parties

  • The agreement must have been made at least 28 days before the marriage - ideally longer

  • It must be a deed, signed by both parties

  • Both parties must have had financial disclosure of the other person's assets before signing the agreement

  • Both parties must have received independent legal advice before signing the agreement

  • The terms must not be detrimental to the welfare of any children.

Pre-nups are not just for the wealthy. If you want to create certainty as to how your assets will be divided on divorce then a pre-nup can achieve this. Certainly if you have any pre acquired assets that you wish to protect in the event of a divorce then a pre-nup is required. For more information on pre-nuptial agreements click here. To speak to a solicitor, get in touch on the details below

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