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What Can and Cannot Be Included?
Chapters
Chapter 3
What Can Be Included in a Prenuptial Agreement?
A prenuptial agreement in the UK is a legal document that couples create before marriage, outlining how their finances, property, and other assets will be handled if the marriage ends in divorce. It provides a way to take control of financial matters and offers peace of mind for both parties.
However, not everything can be included in a prenup, and it’s important to understand the limits of what can be legally enforceable.
A well-drafted prenup allows couples to protect specific financial interests and avoid ambiguity if the marriage ends.
The following are some key elements that can be included:
1. Financial Assets and Property
One of the most important parts of a prenup is clarifying how property and financial assets will be treated.
Couples can list individual and shared assets and agree on how they will be divided in the event of a divorce. This may include:
- Pre-marital property: You can decide what happens to any properties or investments you owned before the marriage. For example, one partner may want to keep a house they bought on their own before meeting their spouse.
- Marital property: Couples can also determine how jointly acquired assets—like a home or cars—will be split if the marriage ends.
- Investment portfolios: You can specify what happens to any stocks, bonds, or shares owned individually or jointly.
2. Debts and Liabilities
It’s just as important to clarify who is responsible for any debts brought into or acquired during the marriage. The prenup can state:
- Which spouse is responsible for pre-existing debts (like student loans or credit card debt).
- How jointly acquired debt, like a mortgage or car loan, will be handled if the marriage ends.
3. Income and Future Earnings
Couples can outline how income earned during the marriage will be treated. This is especially useful if one spouse expects to earn significantly more in the future due to their career trajectory.
You can also include provisions for how bonuses, commissions, or other earnings will be handled.
4. Inheritance
If you expect to receive an inheritance during the marriage or already have one, the prenup can specify that it remains separate from marital property.
This helps ensure that inherited assets don’t get divided in a divorce.
5. Spousal Maintenance
A prenup can include provisions for spousal maintenance, which specifies whether one partner will provide financial support to the other in case of a divorce.
You can agree on the amount, conditions, and duration of this support in advance.
6. Ownership of Gifts and Personal Belongings
A prenup can specify how personal property—such as gifts exchanged between spouses or family heirlooms—will be handled.
This helps ensure that sentimental items stay with the intended person, especially when gifts or heirlooms hold significant value, either emotionally or financially.
7. Pets (Pet Custody)
Many couples consider pets to be part of the family, so some prenups include pet custody arrangements, specifying who will keep the pets in the event of a divorce.
This can prevent disputes over ownership and care responsibilities if the marriage ends.
8. Division of Trust Funds or Future Trust Interests
If one spouse has beneficiary rights to a trust fund or expects to be named a beneficiary of a family trust in the future, the prenup can outline how those funds will be treated in the case of a divorce.
Often, couples agree to keep trust funds as separate property.
What Cannot Be Included in a Prenuptial Agreement?
While prenups give couples flexibility in managing their finances, there are limits to what can be legally included.
Certain elements are outside the scope of a prenup, particularly when it comes to non-financial matters or issues concerning children.
1. Child Custody and Support
Prenups cannot dictate child custody or child support arrangements.
The UK courts will always prioritise the best interests of the child, regardless of what a prenup says.
The courts will make decisions about where the child lives, parental responsibilities, and financial support for the child, ensuring the child’s welfare comes first.
Even if both parents agree on these matters in the prenup, the court can overrule it if it feels the terms aren’t in the child’s best interests.
2. Personal and Non-Financial Matters
Any clauses in a prenup related to personal or lifestyle choices will not be legally enforceable. This includes agreements on:
- Household responsibilities: Who will do the chores, cook meals, or handle finances.
- Personal behaviour: Decisions about how often you’ll take vacations or spend time with family.
- Relationship matters: Anything involving intimate personal decisions or expectations between the partners.
Courts will not enforce these kinds of personal agreements, as they are considered too subjective and irrelevant to the financial purpose of a prenup.
3. Provisions That Promote Unfairness or Illegality
Any terms that encourage illegal activities or are deemed grossly unfair will not hold up in court.
For example, a prenup that leaves one spouse with nothing or requires one partner to give up all their rights would be rejected as unfair.
Final Thoughts
Understanding what can and cannot be included in a prenuptial agreement is vital to ensuring the document is fair, legally enforceable, and useful in protecting your financial future.
It’s always recommended to seek legal advice from a qualified solicitor to ensure your prenup is tailored to your specific needs and meets the required legal standards.
By outlining clear financial responsibilities and protecting individual assets, a prenup provides peace of mind, allowing couples to focus on their relationship without worrying about potential financial disputes in the future.