Pre and post-nuptial agreements - are they really worth it?

Earlier this month my colleague, Phoebe Trott, posted a blog about the forthcoming wedding season and whether those about to get married should consider entering into a pre-nuptial agreement. 

If you still are not sure whether a pre-nuptial agreement is right for you then keep reading! This blog explores some of the advantages and disadvantages of these types of agreements and may help a tricky decision become far easier.

My experience > my bias

As a divorce and family lawyer it would be easy to assume that I would say that everyone getting married should have a pre-nuptial agreement but like most things in life, it isn’t that straightforward. What is right for one person may not be right for another and I can say with confidence that these types of agreements are not the right way forward for everyone.

For those that want the certainty and clarity of knowing how their assets may be divided in the, hopefully unlikely, event of a divorce, a pre-nuptial agreement can provide just that. It can, as Phoebe referenced, set out what should happen to the assets owned by a married couple if the marriage breaks down.

A pre-nuptial agreement can also save you money. It can be much less expensive to enter into an agreement now than to try to work out how the assets should be divided at the point of a separation, particularly if the separation is acrimonious. 

Because everything has already been decided, a pre-nuptial agreement can help to reduce acrimony and enable a separation and divorce to be dealt with more amicably. This is a huge advantage, especially if there are children involved. If a divorcing couple do not have a pre-nuptial agreement and are unable to agree on how to divide their assets, they risk having to spend lots of money on legal fees and decisions will be made for them by a Judge, someone they do not know and who does not know them. 

Ultimately, the Judge may make a decision that neither one of the couple is happy with. A pre-nuptial agreement can help remove this risk and, as referred to above, provide greater certainty.

A question of protection

Perhaps the most significant advantage and the reason why a lot of couples enter into a pre-nuptial agreement is that they have an asset they want to protect. If it is something that has sentimental and/or monetary value, a pre-nuptial agreement can offer that protection. 

Similarly, if one individual is entering the marriage and bringing debt with them, a pre-nuptial agreement can look to protect the other individual’s assets from being used to settle that debt.

One advantage that is not well known is the benefit a pre-nuptial agreement can provide if a couple are each from different countries, or if they are looking to move abroad or have assets that are abroad. A pre-nuptial agreement can include something called a “choice of jurisdiction” clause. In other words, it can specify the country in which the parties want any divorce proceedings to be handled. This can be extremely important and valuable.

Why pre nups aren’t always right

A lot of people believe they are “unromantic”. They aren’t wrong but they should be remembered, they are not intended to be. They are practical documents designed to offer protection to those that want it.

It is not possible to predict what may or may not happen in the future and although a pre-nuptial agreement cannot provide for every eventuality, it can include something referred to as a “review clause”. This can allow the document to be reviewed upon certain triggering events. This may include but is not limited to, the birth of a child and/or one individual being made redundant.

The main reason that people avoid pre-nuptial agreements is that they believe they are not legally binding. This is correct, they are not, but they remain the best form of protection available for couples that wish to regulate what happens to their assets in the event of a divorce. 

Many people are unaware that a court can, and usually does, follow and uphold the contents of a pre-nuptial agreement if it is entered into properly. This is where advice from a lawyer can be invaluable. Provided the agreement is entered into freely, the content is fair, and both individuals understand the implications, the Court will usually uphold it. A lawyer can help you ensure these criteria are met.

If having read this blog, you are still not sure if a pre-nuptial agreement is right for you, please feel free to get in touch for a no obligation free 15-minute telephone call to discuss your own situation. I can be contacted on 01245 453846.