What Should Be Included in a Prenuptial Agreement?

What Can and Can’t Be Included In A PreNup and How Can Mediation Help?

Article Summary

• Protect your finances: A prenup can set out how property, savings, investments, business interests and debts should be treated.
• Be open about finances: Both partners should provide clear financial disclosure before reaching an agreement.
• Plan for change: The agreement can consider future circumstances, including children, career changes and changing financial needs.
• Use mediation early: Mediation can help you discuss priorities and resolve disagreements when negotiating the prenup.
• Resolve later disputes: If a prenup is contested following separation, mediation can help you explore solutions without immediately going to court.
• Get independent legal advice: Each person should have their own legal advice before signing an agreement.

A prenuptial agreement, commonly known as a prenup, allows a couple to set out how they intend their finances to be dealt with if their marriage later ends. Far from being relevant only to wealthy couples, a prenup can provide clarity about property, savings, debts, inheritances and other financial matters before you marry. Find out more in our Prenuptial Factsheet.

However, deciding what should be included in a prenuptial agreement can involve some difficult conversations. You may have different expectations about money, contributions to the marriage or what would be fair if you separated.

Mediation can provide a neutral environment in which to have these discussions. It can help you identify areas where you already agree, work through those where you do not and establish a clearer basis from which your respective solicitors can prepare an agreement.

Postnuptial agreements work in a similar way to a prenup agreement but are entered into after a couple is already married. Read more in our blog Pre Nup vs Post Nup and our Postnuptial Factsheet.

What Can and Can’t Be Included In A PreNup?

A prenup can be tailored to the individual circumstances of the couple. A prenup can be tailored to your individual circumstances and may cover:

• Property owned individually before the marriage
• The family home or matrimonial home and how its value may be treated
• Savings, investments and pensions
• Business interests and company shares
• Inheritances and expected future inheritances
• Debts brought into the marriage
• Assets acquired during the marriage
• Financial gifts from family members
• How particular assets might be divided following divorce
• Potential financial support following separation
• Arrangements for reviewing the agreement if circumstances change

For example, someone entering a marriage with an established business may want to protect their existing interest in that company. Alternatively, parents who have contributed towards a property deposit may want the couple to recognise that contribution within their agreement.

However, there are limits to what to put in a prenuptial agreement. A couple cannot use a prenup to remove the court’s ultimate jurisdiction over financial arrangements following divorce.

A prenup also cannot conclusively determine future arrangements for a child. Decisions concerning children must be based on their welfare and circumstances at the relevant time. Similarly, an agreement should not attempt to leave one spouse unable to meet their reasonable financial needs.

Prenuptial agreements are becoming an increasingly familiar part of financial planning before marriage. Recent UK research found that around one in five people who have married in recent years have signed a prenup, while almost six in ten unmarried young adults said they would consider one.

Financial Disclosure Before Agreeing a Prenup

Open discussion about finances is an important part of creating a prenup.

Both partners should understand the other’s financial position before signing. This can involve exchanging information about property, savings, investments, pensions, income, liabilities and business interests.

Full financial disclosure helps each person understand the implications of the proposed agreement and make informed decisions.

It can also bring issues to light early. One person may have significantly more assets, for example, while the other may expect to reduce their working hours or career progression to care for children.

These are precisely the kinds of circumstances that should be considered when deciding what should be included in a prenuptial agreement.

What’s included in a prenup is personal to you and your partner and should reflect your finances, priorities and circumstances. Speak to LSL Family Law about how mediation can help you discuss and agree the terms together.

How Can Mediation Help You Agree a Prenup?

Talking about what might happen if a marriage ends can feel uncomfortable when you are planning your future together. It can also be difficult if one person first suggested the prenup or there is a significant difference in your respective financial positions.

A mediator does not take sides or decide the terms for you. Instead, mediation gives you a structured environment in which you can discuss your priorities and concerns.

This could include questions such as:

• What property should remain individually owned?
• How should assets acquired together be treated?
• What happens if one person gives up work to care for children?
• How should a family business or inheritance be approached?
• What might each person reasonably need following separation?
• When should the agreement be reviewed?

Working through these questions together can help you reach proposals that reflect your circumstances rather than approaching the prenup as one person’s set of terms for the other to accept.

Each person should still obtain their own independent legal advice. Mediation and legal advice can work alongside one another, with the mediator helping you reach common ground and your respective solicitors advising you individually and preparing or reviewing the legal documentation.

A prenup can be particularly useful if you are marrying later in life and have already built up significant assets, property or business interests. Find out more about prenups when marrying later in life.

What Happens If a Prenup Is Contested?

Having an agreement in place does not necessarily prevent disagreements if the marriage later ends.

One spouse may believe that circumstances have changed significantly since the prenup was signed. There may be disagreement over the meaning of a particular provision, whether adequate financial disclosure was provided or whether following the original agreement would now produce an unfair outcome.

Mediation can help here too.

Rather than immediately asking a court to determine disputed financial issues, former spouses may be able to use mediation to identify what is actually contested and explore whether an agreement can be reached.

This may be particularly valuable where circumstances have changed since the wedding – perhaps children have been born, employment circumstances have altered, a business has grown significantly or one person’s financial needs are now very different.

The Family Mediation Council reports that agreements are reached in over 70% of mediation cases, demonstrating how effective mediation can be in helping separating couples resolve disputes.

Where an agreement is reached through mediation following separation, legal steps may then be needed to make the financial settlement legally binding.

Are Prenuptial Agreements Legally Binding in England and Wales?

Prenuptial agreements are not automatically legally binding in England and Wales.

However, following the Supreme Court decision in Radmacher v Granatino, the courts can give considerable weight to a prenup where both people entered into it freely, understood its implications and it would be fair to uphold it in the circumstances.

The Law Commission has previously recommended the introduction of “qualifying nuptial agreements”, subject to safeguards including financial disclosure and independent legal advice, but these recommendations have not been implemented into law.

This makes careful preparation particularly important. Leaving discussions until shortly before the wedding, failing to disclose important financial information or placing one person under pressure to sign could affect the weight given to an agreement later.

Need help reaching an agreement? Family mediation can help you discuss the terms of a prenup, understand each other’s priorities and work towards an agreement that reflects your individual circumstances.

Using Mediation to Start the Conversation

Understanding what should be included in a prenuptial agreement is not simply about creating a list of assets. It involves thinking about your financial expectations, responsibilities and what each of you considers fair.

Mediation can help you have these conversations constructively before marriage, while retaining control over the decisions you make together.

And if circumstances change or the agreement later becomes a source of dispute, mediation can provide another opportunity to discuss those differences and work towards a mutually acceptable financial settlement without immediately resorting to contested court proceedings.

How LSL Family Law Can Help

At LSL Family Law, we understand that discussing finances before marriage can feel difficult. Our family mediation service provides a constructive space to discuss what you would like your prenuptial agreement to cover and work towards terms that reflect both of your circumstances.

Whether you are considering a prenup for the first time, disagree about particular terms or need to resolve issues around an existing agreement following separation, mediation can help you find a way forward.

Contact LSL Family Law today to discuss how family mediation could help you reach an agreement about your prenup or resolve a dispute over an existing agreement.

FAQs About Prenuptial Agreements and Mediation

About the Contributors

Tanya Forster is a family law consultant, divorce solicitor and family mediation specialist with 20 years’ experience. She is a Resolution-accredited solicitor and accredited specialist in private children law and financial provision, known for her clear, supportive and solutions-focused approach to helping families resolve divorce and separation constructively.

Linda Lamb is the founder of LSL Family Law and a family law expert with over 25 years’ experience. She is a Resolution-accredited solicitor, mediator, and children arbitrator, known for her calm, compassionate, and practical approach to helping families navigate divorce and separation.