What Is a Fair Prenup?

One of the most important factors in determining the validity of your prenup is fairness. There’s a common misconception that prenups can be made heavily weighted towards one side or the other. The 2018 case of KA v MA (prenuptial agreement needs) highlighted the over-arching principle of fairness when Mrs Justice Roberts overturned a prenup because it was seen as unfair as one side was not properly provided for following separation. This is really important to consider when going through the prenup process. It’s not about trying to make sure that one side doesn’t get anything or not adequately provided for, it’s about you both, the couple, deciding what would be fair for yourselves. Going through the prenup process when you’re both in a happy state of mind and entering into it with full openness and honesty, could help your relationship and give you peace of mind that you’re both fairly provided for in all circumstances.

However there are other factors, apart from both sides being provided for, which contribute towards a prenup being seen as fair. These are:

1. You must have both entered willingly into the agreement.

2. The agreement should be signed a minimum of 28 days in advance of the wedding.

3. There needs to be complete disclosure of your finances to your partner and vice versa.

4. Both of you need to have legal advice to make sure you fully understand the agreement. These lawyers must be from separate firms if using family law solicitors. However barristers can be from the same chambers. Wenup facilitates this through the platform automatically.

The only fairness principle however that is not black and white is the principle of both sides being adequately provided for. If one side wants to protect a specific asset, it’s not just about signing a prenup which says that a particular asset is yours. To ring fence an asset, there needs to be alternative means of compensation or they need to have equivalent assets of their own that they’re able to keep for the ringfencing to be deemed fair. If there was the situation, where a prenup left one side of the couple comfortable and the other in a tricky financial situation, it would likely be disregarded in a similar manner with the above 2018 case of KA v MA.

The fairness principle also applies to debt, which is something often missed. Prenups can protect a partner from accrued debts by one side. Debts need to be included in the complete financial disclosure talked about in point 3 of the above prenup consideration factors. The process helps prevent any unexpected surprises later on down the line.

If children come along or your circumstances change in other ways, it’s imperative that you have your prenup reviewed and amended accordingly. This is especially important if children come along, as they are the number one consideration for prenups from a fairness standpoint and there always must be adequate provision for them in any couples agreement. If you amend a prenup, it simply becomes a postnup and is identical in every other way to a prenup.