Will you marry me… and can we have a prenup, please?
Who doesn’t feel a touch of romance around Valentine’s Day? Have you recently got engaged?
Find out why you should consider a Prenuptial Agreement before getting married.
We like to think of marriage as forever, till death us do part. Planning in case your relationship ends in divorce before the wedding day might seem like an odd thing to do….. but that’s not necessarily true. The reality is that marriages today are increasingly ending in divorce — but that doesn’t always mean the marriage is a failure. Many couples remain good friends, or at least on good enough terms to work together in giving their children a secure upbringing.
One of the worst things about a divorce is often that it involves disputes and wrangling over money and other assets, all at a time when emotions are running high. The stress and uncertainly about what might happen can actually contribute to the marriage’s breakdown.
Drawing up a Prenuptial Agreement, far from been unromantic, may be the very thing that keeps the romance alive in your marriage.
What Is a Prenuptial Agreement?
A Prenuptial Agreement is a document specifying what rights each partner has over income, property and assets they’ve either bought jointly or brought individually into the marriage. It will also specify any responsibilities they have for outstanding debts if and when the marriage ends.
This is important, since the normal legal position is that all assets, even those one partner has inherited or acquired before the relationship began, are considered matrimonial assets. In the event of divorce proceedings, the court will divide all such assets in a way it considers fair at the time, without any consideration for who originally contributed it.
Prenuptials may seem a very modern concept, but actually the idea has been around for centuries. Marriage settlements used to be very common (and still are in many cultures), and these would typically include a kind of prenuptial agreement. Since legal rights were heavily biased in the husband’s favour, it usually protected what the wife’s right to keep some assets at the end of a marriage, whether by divorce or widowhood.
Who might need a Prenuptial Agreement?
Any couple entering into a marriage or civil partnership, can benefit from entering into an agreement. In practice, though, there are certain couples more likely to do so than others.
If you’re marrying for the second (or subsequent) time, you may well feel a stronger need to draw up an agreement, especially if you’ve had a bad experience with divorce. You may also wish to protect any settlement you received from that divorce, as well as ensuring your children from the previous marriage are protected.
A prenuptial may be particularly relevant if one partner owns a business or has a lucrative but time-limited career, such as in professional sport. On the other hand, it can also be used to protect one partner from debts the other has incurred.
What is necessary for a Prenuptial Agreement?
A Prenuptial Agreement is a formal contract, not something to rush into because of last-minute nerves. It should be planned well in advance, along with every other aspect of the wedding.
It’s vital to be able to prove that both parties were fully informed and consented without pressure. The only sure way to do so is if each has a separate family law solicitor, who’ll take them through all the necessary procedures and produce documents that stand up in court.
Each prenuptial needs to be carefully tailored. You can download agreements from the internet, but they’re unlikely to apply to your precise situation.
Finally, it’s crucial that each partner gives a full disclosure of all their assets. If either person attempts to hide anything from the other, the whole agreement is likely to be ruled as invalid.
Will a Prenuptial Agreement stand up in court?
Like any contract, a Prenuptial Agreement is a powerful statement of intent that will normally be accepted. The Court will treat the agreement as one of many factors to be considered, (such as the ages and earning capabilities of each party), when considering the division of assets. A recent landmark judgement has made it clear that if all the relevant factors are present, the Court will usually uphold the terms of a Prenuptial Agreement. However, a court does have the power to set it aside if it has serious doubts about the agreement. For example, if the court felt one partner had been pressured into signing, or if full disclosure of assets hadn’t been made.
The agreement can also be declined if the court decides it has created an unfair situation, especially to any children involved. Quite appropriately, courts take the rights of children very seriously, and an order that contradicts the agreement could be imposed to safeguard a child.
What happens next?
Each partner keeps a copy of the agreement, and each solicitor involved will also have a copy. Hopefully your Prenuptial Agreement will never be used, but that doesn’t mean you should forget about it.
Like a Will, a Prenuptial Agreement should be reviewed and updated regularly, to keep it relevant. Particularly if your financial situation has radically changed, or perhaps you’ve had children who need to be taken into account. If you ignore these changes, the court could reject the agreement.
Have a great marriage
The whirlwind of falling in love, proposing and accepting, and pledging yourself on your wedding day — these are some of the most romantic experiences. Marriage itself, though, must be a balance of the romantic and the practical.
A Prenuptial Agreement, just like a life insurance policy, prepares for the worst so you can be secure and just enjoy the romance of your marriage way into old age.
How we can help
Since this article has been published we no longer offer Family Law services but we can help you with:
- Wills, Probate & Power of Attorney
- Personal Injury
- Court of Protection
- Medical Negligence