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Pre-nuptial Agreements - not just for the rich & famous

View profile for Shelley Cumbers
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Pre-nuptial Agreements - not just for the rich & famous

Whilst the idea of signing an agreement to deal with the separation arrangements on divorce is not a romantic one, compared to the exciting plans of organising the wedding, celebrations and honeymoon, pre-nuptial agreements are still an important matter to consider when a couple are planning on getting married and should not be overlooked. 

Gone are the days when pre-nuptial agreements were only used by the rich and famous – now they are becoming increasingly common for many couples embarking on marriage, including those within the LGBTQ+ community.   

What is a pre-nuptial agreement?

A pre-nuptial agreement, often referred to as a “pre-nup”, is a written agreement signed by a couple in contemplation of marriage and before their wedding ceremony. It is a practical way of agreeing, in advance, how the couple intend their financial and other arrangements to be dealt with if their marriage breaks down in the future, so that those issues can be resolved easily if the need arises.

Why should you have a pre-nup?

Pre-nups can be particularly useful in short or childless marriages, or where one party is in a stronger financial position than the other. They should be considered by all couples planning marriage, including same sex couples. Whilst there will be a financial cost incurred to put a pre-nup in place, it can save a lot of time, heartache, and considerably more money in the future.

There are many reasons why couples embarking on marriage will consider making a pre-nup, but the most common reasons include:

  • Same-sex marriage
  •  Protecting assets and wealth acquired before the marriage
  • Second or subsequent marriage for one or both parties
  • Considerable business assets or interests
  • Family members such as parents making financial provision for the parties
  • One party is the beneficiary of a trust and the trustees do not want the assets or trust to be vulnerable in a later divorce
  • Farming cases
  •  Parties with international connections

What should be included in a pre-nup?

Pre-nups are bespoke documents which means they can be personalised to suit the circumstances of the couple. 

Let’s face it, no two couples are the same, whether heterosexual, lesbian, gay, bisexual, trans or other. Every couple has their own unique needs and individual circumstances. The benefit for couples of having a pre-nup in place is that it enables them to decide what they want to include in their agreement and how they intend the arrangements arising from the breakdown of their marriage to be resolved based on their circumstances.  

It enables the couple to take control of their affairs rather than leaving this matter to potentially be decided by an unknown third party such as a Judge sitting in the Family Court in contested financial proceedings on divorce.

 A pre-nup can cover many issues, but for most couples, it will deal with the following:

  • How any property and other pre-acquired assets brought into the marriage will be treated
  • What will happen to the family home
  • What will happen to any inherited property or assets received during the marriage
  • How joint bank accounts and property jointly acquired between the parties will be dealt with
  • What will happen to any savings and investments accumulated during the marriage
  • How any debts will be treated
  • How pensions will be dealt with
  • The arrangements for financial support
  • Triggering events to force a review of the agreement in the future
  • The practical and financial arrangements for any children either party has or is likely to have in the future

Are pre-nups legally binding?

As the law currently stands, pre-nups are not legally binding in England and Wales. However, the existence of a pre-nup is one of the factors the Family Court will consider when deciding a financial settlement if the couple later divorce.

Provided the pre-nup is fair to both parties, the court may be slow to interfere with its terms and the agreement is likely to be afforded significant weight to determine the outcome of a contested financial application.

For a pre-nup to be given sufficient weight and consideration by the court, the following safeguards must be applied:

  • The pre-nup must be made in good time before the wedding ceremony to allow both parties sufficient time for reflection and negotiation and to ensure neither party is rushed into signing it. In practice, this means the pre-nup should be signed no less than 28 days before the date of the marriage. However, if this is not possible, then the pre-nup should include provision for a post-nuptial agreement (also known as a “post-nup”) to be made within 6 months after the marriage. 
  • Both parties must exchange full financial disclosure at the time the agreement is made.
  • Neither party must be unduly pressured into signing the agreement.
  • Both parties must take independent legal advice or, at the very least, be given the opportunity of taking such advice before the agreement is signed.
  • The agreement should be fair and realistic, especially when there is a financially weaker party to ensure their needs are met. The more generous their needs are catered for in the pre-nup, the more likely it is that the agreement will be upheld by the Court.
  • Consider making provision for the pre-nup to be reviewed if there are significant changes during the marriage such as the birth or adoption of any children or after a fixed period.

To find out more about how our expert team of Family Lawyers can help you with any issues arising from this blog, or if you have any questions surrounding relationship agreements, divorce, separation, or children issues, please do not hesitate to contact me on 01206 217378 for a no obligation free of charge 15 minute chat. Alternatively, you can email me directly on shelley.cumbers@birkettlong.co.uk.

 

 

 

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