Prenuptial agreementsHow do prenups work?

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Premarital agreements: How do they work?

Prenups, pre-civil partnership agreements and postnups are sometimes collectively called 'marital agreements'. They all operate in a similar way and, at the moment, they are not strictly legally enforceable.

It's different in Continental Europe

Prenuptial and other Marital agreements operate very differently in England and Wales to agreements made by couples in the context of the marital property regimes that operate in most other European countries, which are based on civil law.

In those countries, the main purpose of the agreement is to contract out of the default marital property regime (usually community of property) and to elect another marital property regime (usually separation of assets) and so avoid incurring shared liability for the other spouse's debts.

Generally such continental marriage contracts concern only the couple's capital assets and do not prevent the economically weaker partner applying for spousal support/maintenance, in the event of the breakdown of the marriage.

In contrast, most prenuptial agreements in England and Wales usually adopt a "belt and braces" approach, setting out what should happen in relation to both the division of assets of the marriage and financial support (maintenance) for the economically weaker spouse in the event of the breakdown of the marriage.

We do not have marital property regimes in England and Wales. Husbands and wives can own property jointly or in their respective sole names after marriage. If the marriage breaks down, the English court on divorce has a very wide discretion to redistribute the family assets so as to bring about fairness between the couple, including both income and capital redistribution.

English prenuptial agreements are about protecting the wealth of the economically stronger spouse and thereby avoiding/reducing the impact of the court's discretionary jurisdiction on divorce in England and Wales.

We know how to help you

If you are considering entering into a prenuptial agreement, we provide free initial legal advice by telephone or e-mail. We assess your requirements and provide initial advice about how a prenuptial agreement could work in your particular circumstances, at no cost to you and without any obligation for you to instruct us formally to act. If you do then decide to instruct us formally, we will invite you to attend a meeting. After that meeting, we will provide you with an estimate of what the cost of your prenuptial agreement is likely to be.

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