Pre-marital contracts: 10 FAQs

  1. I’m getting married soon and I’ve read about pre-marital contracts. Should I have one?
  2. We don’t own very much. Is there any point in us making a pre-marital contract?
  3. What should the pre-marital contract cover?
  4. Isn’t it rather unromantic to make provision for the marriage failing? How can I raise it with my partner?
  5. Do I need a solicitor to make a pre-marital contract?
  6. If we decide to make a pre-marital contract, can we both use the same solicitor, to save costs?
  7. How much will it cost to make a pre-marital contract?
  8. My pre-marital contract is at least five years old – should we review it?
  9. If we do break up, will the pre-marital contract automatically apply, or could my spouse challenge it? How?
  10. Are there any other legal matters I should think about before getting married?

1. I’m getting married soon and I’ve read about pre-marital contracts. Should I have one?

A pre-marital contract is a written agreement you make before your marriage (or registering a civil partnership) setting out what should happen if you divorce. It is sometimes called a 'pre-nup', 'pre-nuptial contract' or 'pre-nuptial agreement'.

Take advice about a pre-marital contract if:

  • You already have substantial assets, and you want to keep those out of the reckoning if your marriage breaks down.
  • You have been married or a partner in a civil partnership before, and are taking property into the marriage that you want to keep separate for your own children.
  • There is an international aspect to the marriage, so that you might find financial awards made against you in the courts of more than one country.
  • Your circumstances are unlikely to change – for example, where you are unlikely to have any more children.

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2. We don’t own very much. Is there any point in us making a pre-marital contract?

Usually not, unless there is an international aspect to your marriage or civil partnership. But could your circumstances change? What if your business takes off, or a rich relative leaves you a substantial bequest in their will? Although you may prefer to cross that bridge when you come to it, rather than stir up potential trouble by asking your intended to sign a pre-nuptial contract (see 4), it’s worth thinking about these possibilities.

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3. What should the pre-marital contract cover?

It should cover:

  • How assets like money, shares, pension, etc are to be divided between you.
  • What will happen to your house(s) – who will be entitled to live where?
  • Any ongoing payments ('maintenance') to be paid to the other, and for how long.
  • Any maintenance to be paid for the children.
  • Where there is an international aspect to the family (for example, you own homes in more than one country or you and your partner are of different nationalities), the country where the divorce proceedings will take place.

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4. Isn’t it rather unromantic to make provision for the marriage failing? How can I raise it with my partner?

Many take the view that divorce is always a possibility. It can be a sensible precaution to discuss unpleasant possibilities in an open and frank manner, just as you have to do when you make a will. Just identifying an issue can stop it being a problem later.

Getting married or forming a civil partnership revokes your will, if you have one. Even if you do not, you will want to make sure your spouse or partner is provided for if you die. So you should talk about a will with your solicitor before you marry or register your partnership anyway. Take the opportunity to discuss with your solicitor how to raise the issue of a pre-marital contract too – it can sometimes be more diplomatic if your solicitor raises it, as your professional advisor, rather than you raising it direct.

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5. Do I need a solicitor to make a pre-marital contract?

Yes. It is unlikely that a court would follow a pre-marital contract unless you had both had proper legal advice on its effect (see 9).

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6. If we decide to make a pre-marital contract, can we both use the same solicitor, to save costs?

No. It is important that each of you receives independent legal advice (see 9). Without it, the court will give less (or, possibly, no) weight to the contract.

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7. How much will it cost to make a pre-marital contract?

Fees will be charged on the basis of hours spent, so it depends on the circumstances of the case – whether there are children from previous marriages or civil partnerships, whether there is an international element, the amount and nature of your assets, etc. Budget around £800 plus VAT. Costs will depend on the nature of the assets and complexity of the case.

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8. My pre-marital contract is at least five years old – should we review it?

A pre-marital contract must be reasonable and fair (see 9). Ensure you check with your solicitor every time there is a significant change in your circumstances, such as birth of children of the marriage or partnership, which might affect the award a court would make if you divorced or separated. Also check with your solicitor from time to time, to make sure that the law (or its interpretation by the courts) has not changed in such a way that the pre-marital contract stops being fair, for example, by giving more rights to one of the divorcing spouses in certain circumstances.

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9. If we do break up, will the pre-marital contract automatically apply, or could my spouse challenge it? How?

Pre-marital contracts will not automatically be enforced by the courts in England and Wales, but they are increasingly influential when the court is deciding an appropriate financial award in divorce proceedings. You are likely to be better off with one than without one.

Particular areas to look out for are:

  • It must have been made a reasonable time (preferably at least 21 days) before your marriage or the registration of your civil partnership – if it was made immediately before, the court will be concerned that one of you might have put pressure on the other.
  • In all other respects it must have been made without either of you imposing any pressure or duress on the other.
  • Each of you must have been given the opportunity to receive independent legal advice on the contract.
  • Each of you should give the other full and frank details of your financial circumstances.
  • The terms of your contract should be fair although this concept is difficult to define.

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10. Are there any other legal matters I should think about before getting married?

Yes.

  • If either of you has made a will, it will become void when you marry or form a civil partnership, unless it has specifically been made in anticipation of the marriage or registration of the civil partnership. So you will probably need to make new wills.
  • If either of you has not already made a will, you are strongly advised to do so. If you die without making a will, it is the law that decides who gets what if you die, not you or your spouse or partner – and there are plenty of other disadvantages to not having a will.
  • If either of you has been married or a partner in a civil partnersip before, your new marriage or civil partnership might affect your previous divorce settlement. Take advice.