Retirees and Family Law: later life love and pre-nups

To my dearest Valentine

Roses are red

Violets are blue

I want a pre-nup

Please say, “I do.”

In today’s modern-day, and dare I say “age”; not every marriage is for life. The same could be said about a “job for life”, perhaps now being a myth and a thing of the past.

There are many reasons why spouses divorce one another, ranging from very mild reasons like no longer being interested in one another to the extreme end of the spectrum of a marriage being toxic or violent. Equally, there are many reasons why couples stay together for longer and decide that they shall not end a marriage until later on in life, for example, when the children are adults or the spouses are nearing retirement age. 

In my decades of experience practising family law, it is always pleasing to know that my clients have formed new relationships following a divorce or separation – some with a view to remarrying and others with a view to cohabiting. Whatever choice they may take, it boils down to wanting to have a companion, someone you can talk to (or observe comfortable silence), to be there when you get home, to eat dinner with, or to fulfil their bucket list.  

For those who may choose to get married later on in life or are entering a second marriage, there remains an inherent risk of couples entering a second marriage with unequal financial contribution, whether this be in assets or income, the complication of children from a previous marriage or relationship (whether adult or minors) and where a couple may want to have further children to their own marriage or indeed how financially dependent one party in the marriage may be upon the other.

In such circumstances, there are steps which can be taken to decrease any conflict and increase any understanding of the intentions of a couple (and indeed any other family members) by entering into a pre-nuptial agreement (“pre-nup”) in good time of any intended marriage ceremony or indeed shortly after by way of entering into a post-nuptial agreement (“post-nup”). It should be noted that pre-nups and post-ups are treated the same.

How common are they in second marriages?

According to the Office of National Statistics, the most updated figures are for 2020, which detail 85,770 marriages taking place in England and Wales. This is considered a decrease upon 2019. The 2020 statistics take into account the impact of COVID-19 and the subsequent lockdowns that year. Not surprisingly, 2020 saw the largest annual decrease in marriages since full marriage records began in 1838! For opposite-sex couples, 63.2% both married for the first time and same-sex couples, 69.9% married for the first time. Compared to 2019, this represented an increase in the number of partners who were not marrying for the first time.

How do you know what an asset is?

An asset is not just limited to bricks and mortar, i.e. property, but can extend to stocks, shares, pensions, income, valuable items, business and inheritance and can further extend to aspects such as liabilities, for example, mortgages, loans, and credit cards.

How important is open communication when discussing pre-nups?

Open communication and transparency are the absolute key. One cannot simply have a pre-nup (or post-nup) detailing “what’s mine is mine, and what’s yours is yours”.

Both parties are expected to share a level of financial disclosure with the other. This may simply be identifying the type of “asset” and its value.

The lack of financial disclosure of assets can risk undermining any pre-nup.

What should you look out for as warning signs when setting up a pre-nup?

In addition to the sharing of financial disclosure, there are a number of other “musts” to be observed so that they then add weight to a pre-nup:  

1. Entering into a pre-nup freely and willingly on the understanding of the full implications of such an agreement

2. The “real needs” (for example, housing) of the parties and any relevant minor children of the family must be addressed

3. The pre-nup must be entered in good time before the marriage ceremony takes place (at least 28 days is sensible)

4. Both parties to take independent legal advice. A note of caution – the absence of independent legal advice does not make a pre-nup invalid.

How do second marriages affect Pensions?

The area of pensions is a complex one and one which should not be ignored; this is irrespective of whether a pension is in payment or not. Information needs to be sought about the value of any pension, including what it will pay out in retirement.

Consideration should also be given as to whether specialist advice is required from a financial advisor or a pension specialist (pension actuary) before agreeing to share any pension scheme.

If you missed our insightful webinar on the updated Pension Advisory Group Guidance (PAG2), the recording is now available online for your convenience. This event was led by Partner and collaborative lawyer, Mel Loxley and expert Associate Solicitor, Dorjan Myrtja, both in the Divorce and Family team. can now explore the similarities and differences in the guidance provided by PAG and the new PAG2 in your own time.

I am a specialist family law solicitor and offer an initial free 15-minute no obligation telephone consultation. You can contact me on 01268 824938 or via email at muntech.kaur@birkettlong.co.uk.