What A 'Prenup' Can and Cannot Do

14 January 2016
 Categories: , Blog

These days it's common practice to consider getting a prenuptial agreement, or prenup, drawn up by a family solicitor before you tie the knot.  But what issues does a prenup cover and do you really need one?  Read on to find out more.

What does a prenup do?

The purpose of a prenup is to protect both parties from the legal implications of divorce or death.  In the case of a potential divorce, a prenup agreement can;

  • pre-determine which of your jointly held assets are marital or non-marital
  • set out the agreed division of such assets
  • set out terms of spousal support or alimony

This means that, if your relationship does end in divorce, you will be much less likely to incur financial losses and costs than if you have no such prior agreement in place, and the emotional ramifications will be less severe.

A prenup agreement can also offer protection in the event that one party dies.  For example, even if you and your spouse are estranged, they may still be entitled to inherit part of your estate in the event of your death.  In a prenup agreement you and your spouse can agree to waive any claim on the other party's estate in the event of your divorce or separation.

Finance is something that many couples avoid discussing in depth before they marry.  A prenup insists that both parties fully and fairly disclose any assets they have prior to the agreement being signed.  Any debts held must also be divulged.  This prevents either party from subsequently returning with a claim that they didn't know the value of any assets that they forfeited by entering into the prenup.  Couples are also obliged to discuss in detail how their assets and earnings will be dealt with during their marriage, which may help to avoid stressful confusion later.

What doesn't a prenup agreement do?

You cannot use a prenup agreement to determine custody of any children born during the marriage, or those already in existence prior to it.  Neither can a prenup be used to enforce future child support provisions.

There are a number of provisions that are not legally enforceable by a prenup, even though such clauses are often included.  For example:

  • weight gain
  • frequency of sex
  • infidelity consequences and punishments
  • division of household chores

In conclusion

Before you even book the venue and the honeymoon, a prenup agreement is something you and your partner should discuss with a family law firm to protect both parties of the marriage.