What is a Prenup and Why are They Important for LGBT Couples?

by | Mar 24 2021 | Family Law

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Kitty Leask LGBT Lawyers
By Kitty Leask
Kitty is the latest addition to LGBT Lawyers' team. A member of the LGBT community herself, Kitty dedicates her time to promoting the LGBT fight for equality and is here to help all of our clients find the right lawyer to support their case.

Prenups | Read Time 4-5 Minutes. 

Having the “prenup conversation” can be difficult.

A prenup implies that you’re already thinking about divorce. That your partner doesn’t trust you. That one of you wants to protect their enormous wealth from the other. Right?

Well, actually, no.

Despite their reputation, prenups are actually a very sensible thing to do.

With the number of divorces rising rapidly in the UK, prenups are an increasingly popular option for new couples. Hetero and LGBT partners are looking to prenups more and more as a way to protect themselves and their assets down the line.

LGBT Lawyers Eat Drink and Be Married Prenup

what is a prenup?

A prenuptial agreement is an contract drafted by a couple before they get married. Your prenup will document everything that each person owns, both jointly and individually. For example, this could be finances, assets/belongings and property.

Your agreement protects yourself, your children and even your partner (if, for example, you have personal debt). For same-sex couples in particular, a prenup can be important in the event of a divorce or dissolution of a civil partnership.

As it currently stands, a prenuptial agreement is not a legally binding document in the UK. However, this doesn’t mean they’re not important. Your prenuptial contract can be used as evidence in court if necessary.

If you and your partner decide to document anything of importance after you get married, you will need a postnuptial agreement. The only difference is that one document comes before marriage; the other comes after.

Why might I need one?

Your prenup can protect everything you’ve created in the past and prepare for anything that may happen in the future. 

A common misconception is that prenups are for people who have a lot of money. While this is one reason why you might need a prenup, it’s not the only one. A prenup can also protect one partner from taking on the other’s debt. Also, it can protect you if you’ve inherited a large amount of money or valuable assets.

Some people will also choose to have a prenup if they own a business. Others may need one if they want to protect certain assets for their children from a previous marriage.

Whatever the reason, a prenup is an entirely personal decision and, if anything, shows a strong sense of trust and communication between partners. 

LGBT Lawyers Same Sex Prenup

Why is it important for LGBT couples to have a prenup?

LGBT couples are more likely to have built up their finances and assets over time.

“As people in same-sex relationships tend to marry later in life, they are more likely to have accrued more personal wealth, possessions, possibly property and a pension pot.”

In the UK, hetero couples typically marry at 30, with LGBT couples typically matching closer to 40.  Many same-sex couples who are married now are also likely to have been together before same-sex marriage was legalised in the UK. Because of this extra time before marriage, same-sex couples have had more time to build up finances and assets, both together and separately. 

It’s for these reasons that getting a prenup can be essential for LGBT couples who are getting married, or are already married. LGBT couples are also less likely to re-marry, so having the prenup-safety net can be essential in the event of a divorce.

“What originally made the popularity of same sex marriages rather different was the fact that these frequently involved couples who had already established their relationship, complete with financial assets.”
What do i need to consider before i make mine?

When you make your prenup, you’ll need to consider that your agreement won’t be legally binding, but it will still be a valid document in court. You will also need to regularly review your document, especially when a large life event occurs. If your prenup is outdated, you risk the contract being disregarded.

For LGBT couples, you’ll need to update your prenup if you adopt use fertility treatments or use a surrogate to have a child together. If you are in the process of transitioning, you can update your prenup as your transition unfolds.

You’ll need to be aware of any inequalities when you sign your agreement. In fact, you’ll need to consider the possibility that you could be signing an unfair prenup. For example, if you and your partner acquired assets or finances before the legalisation of same-sex marriage. In this case, it’s essential to document exactly who owns what, to avoid inequalities.

LGBT Lawyers two gay men prenup

In the event of a divorce or dissolution, your prenup will only be valid in court if it meets a set of criteria. These are:

  • You and your partner both had legal advice before you signed the prenup
  • The needs of any children are documented
  • Both sides are weighted equally and the prenup is unfair
  • The prenup was made at least 28 days before marriage

To ensure you meet these criteria, it’s always best to have a lawyer look at your agreement. 

It’s not a legal requirement to have a lawyer look over your prenup. However, it can be difficult to uphold a prenup in court if it hasn’t been legally witnessed. Because of this, it’s best to have your lawyer look at your agreement in the early stages.

If you have any questions regarding the prenup application process, you can contact our team on 020 3795 9020, and we will put you in touch with an experienced family lawyer.

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