What Happens if You Sign a Prenup and Get Divorced?

A prenuptial agreement (often referred to as a prenup) is a contract that two parties enter before they marry or get into a civil partnership.

It formally recognises the ownership of assets and details a full disclosure of what happens to these assets should the relationship break down and end in divorce or dissolution.

What is a prenuptial agreement?

Effectively, a prenup will dictate who gets what, but there is a false impression that they are solely for the wealthy and elites of society.

Whilst successful businesspeople and celebrities often get prenups, the common belief is that they are shielding their assets from a less wealthy future spouse.

Anyone can get a prenuptial agreement. There are numerous reasons why someone might consider getting one.

If an asset is matrimonial, in the event of a divorce it's part of the marital pot and divided equally between both partners. This also happens in a Mesher Order.

In divorce or dissolution, both partners have a claim to the marital assets. However, a prenuptial agreement would allow for each partner to protect certain assets from being added to the pot.

There is no financial value required to add an asset to a prenup, and it doesn't even need to be in your possession at the time of signature.

What is included in a prenuptial agreement?

When drawing up a prenup, your solicitor will advise on what is appropriate to include. This could be:

• Property: Any property that either or each spouse brings with them into the marriage or civil partnership should likely be included in the agreement, as well as what will happen to the family home in the event of divorce or dissolution.
• Money: Investments and money held by each partner separately, as well as any savings kept in joint accounts, should be accounted for in the agreement.
• Debts: Any debt built up by one spouse or the other should be included to protect against debt liability. Potential future debts can also be involved.
• Inheritance: If one partner intends to pass on an asset as part of an inheritance, it can be noted on the prenup. Equally, any expected future wealth brought in from inheritance gained as a beneficiary can be protected here.

Free initial advice on how to protect your assets

We can help with:

• Discussing the benefits of a prenuptial agreement versus various alternatives.
• Drafting a fair agreement to meet the criteria to be upheld in court.
• Negotiating terms between partners.
• Providing independent legal advice on the terms of an agreement drafted by another solicitor.
• All of the above for a post-nuptial agreement, if you are already married or civil partners.
• Property disputes and litigation if your relationship has broken down, with or without a pre-existing prenup.

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What happens if you don’t sign a prenup?

Signing a prenup is something that requires careful consideration.

Going through a divorce will be messy at best, regardless of whether a prenup is in place or not. Signing a prenup does make the divorce process slightly easier, though.

Without a prior agreement, you will need to be prepared to fight for the things you think you deserve and brace yourself for some potentially uncomfortable discussions.

One spouse might feel like they are being treated unfairly by the court and in the equitable distribution of marital assets, and it can take a long time to even get to that point.

It’s important to remember that if you don’t want to sign a prenuptial agreement, you don’t have to. You cannot be legally forced by your spouse to sign one.

If you divorce without a prenup in place, the court will take a range of circumstances into account when dividing your assets. The common belief that the split will be 50:50 is not always true, and the needs of each party will be looked at.

For example, if one party has worked part-time to focus on childcare then that person might receive a larger share of the matrimonial pot for adequate future provision.

In any case, the court will rank the needs of any children involved higher, meaning that the primary caregiver could be given the family home, at least in the short term.

Is a prenuptial agreement legally binding in UK law?

While prenuptial agreements are legal documents, the court might choose to divide certain individual assets differently than how it’s set out in the prenup.

This is dependent on the situation and the facts of that case, so the court will view the prenup in the context of the circumstances in which it was made, and then also the effect of holding both parties to the terms of the document at the point of the relationship breaking down.

Prenups are not legally binding contracts, but they are reliable if they follow these guidelines:

• The contract must be signed at least 21 days before your wedding to show it was not signed under pressure.
• Full financial disclosure from both parties will need to be included.
• Both parties must take independent legal counsel before signing the agreement.

Once you have a signed prenuptial agreement, it should be consistently reviewed and checked regularly to ensure that the terms are still applicable and appropriate.

If you’ve signed a prenup that you regret, you can and should still go to court to settle your finances during divorce proceedings.

The judge will consider the terms of the prenuptial agreement, but in doing so they will investigate the integrity and circumstances in which it was agreed. From there, it may or may not be upheld, or the court may make amendments to suit your current situation.

Prenups in International Divorce Law

Marrying someone from abroad comes with its own considerations and applicable laws. A settlement in divorce can become tricky where laws in your partner's country of origin apply, but prenuptial agreements help avoid these pitfalls of sharing matrimonial assets in another jurisdiction.

Will a prenup protect me if I get a divorce?

If you are drafting the prenup in good faith, being fair to both parties, the answer is typically yes.

If you have taken the correct steps to ensure the contract is legally sound and drawn up fairly, there aren’t many reasons as to why the court won’t uphold it.

Not only does a prenup aim to protect assets, but it can also protect against debts. This can be effective if one party has, or anticipates having, any debts that they don’t want their partner to be liable for should the relationship end.

Prenuptial agreements are gradually being used more to protect business interests, too. A lot of companies now expect their directors to make certain that their partners can’t gain a share in the business if they were to divorce.

Protecting future assets

Future earnings and assets can be protected if a clause is included within the agreement. The key is to describe these potential earnings and assets in specific detail. For example, one partner may anticipate receiving significant funds from an inheritance at a future date.

If a full description of the trust or inheritance, along with specifics on who will own what is included, this might be enough for the court to allow it to be kept separate in divorce proceedings.

One partner’s potential future income will also need to be fully specified if included in the prenup for protection. It can be used if they operate a business that initially generates a small amount of income, but the forecast is much more in the future.

However, there is no real guarantee that a prenup can fully protect you in the event of a divorce or dissolution.

A prenuptial agreement cannot address issues of child custody or child maintenance. The court usually determines those at the time of divorce, and the children’s best interests and needs trump all.

What would invalidate a prenuptial agreement?

A court isn’t likely to uphold the terms of a prenup if:

• It was not written by a qualified solicitor who specialises in family law.
• There is no full financial disclosure by either or both parties.
• Either party did not receive independent legal advice.
• A solicitor advised either or both parties not to sign the document.
• The partner with the most to lose did not fully understand the nature of the prenup.
• There was no negotiation.
• Either party felt pressured or bullied into signing.
• It was signed less than 21 days before the wedding or civil partnership.
• It failed to account for future changes in the marriage or civil partnership, such as provisions for children.

Can a prenup be contested during a divorce?

Challenging a prenup during a divorce is possible, but fair arguments must be provided. These include:

• If any children of the marriage would be mistreated.
• If the agreement was signed when one party lacked mental capacity.
• If either party was put under pressure or undue influence at the time of signing.
• If the agreement was drawn up less than 21 days before marriage.
• If both or either party had not fully declared assets or debts.
• If any changes were made to the text after the agreement was signed (it is possible to legally amend a prenup if either party's finances change, though).

Alternatively, if both parties agree, a prenuptial agreement can be amended during the marriage. Some couples can do this if their financial circumstances change. For example, the highest earner of the household no longer being the breadwinner.

Can a prenup be declared null by a judge?

Even without a challenge, judges can proclaim a prenup invalid. These reasons include (but are not restricted to):

• The judge being able to prove one party was forced into signing the agreement, or that they lacked mental capacity when it was signed.
• If evidence proves to the judge that one or both parties did not understand what they were signing.
• The agreement has conditions that could be seen as an effort to control or demean either party.
• Either or both parties failed to disclose assets and debts fully.
• The paperwork was either poorly prepared or filed incorrectly.

In family courts, prenups are playing their part in safeguarding finances, assets, and family wealth in divorces. That is if the contract checks the criteria listed above.

However, there are cases in which a prenup would be null and void in the eyes of the court. Seek specialist legal advice before signing an agreement (pre or post-nuptial).