Pre-nups - all you need to know
For many years pre-nuptial agreements have been thought of as only for the rich and famous. However, in many cases, a ‘pre-nup’ can be a very sensible thing to consider.
What is a pre-nuptial agreement and why might it be useful for me?
Where a couple plans to marry, a pre-nuptial agreement sets out what they would want to happen to any property, debts, income and other assets either bought together or individually, or that they brought into their relationship, if the relationship ends.
If you are in any of the following situations, a pre-nuptial agreement may be right for you:
- You are thinking of getting married and want to protect your property in case it doesn’t work out.
- You are about to marry for a second time and want to limit any potential claims on the settlement you received from your first marriage if things go wrong again.
- You are a widow/widower thinking of marrying again and want to protect your assets in case things go wrong.
- You are about to marry but worry that if things go wrong, you could end up in a costly and lengthy argument about who gets what.
- You are about to marry for a second time but want to protect your assets to make sure you have something to leave to your children from your first marriage if your new relationship breaks down.
How do I get a pre-nuptial agreement?
It is very important to remember the following points:
- If you have decided to marry, don’t wait until the last minute to draw up a pre-nup. An agreement signed on the way to a stag or hen party is less likely to be upheld than one carefully thought out and signed at least a month or so before.
- Both parties should take independent legal advice. This avoids accusations further down the line (if things do go wrong), that pressure was put on one party or the other to sign the agreement. It also means that both parties ensure that the person with the most to lose understands the implications of the agreement.
- Full disclosure of each party’s financial position must be made before the agreement is signed.
- It is important to think about how you would deal with any changes in circumstances that might happen during the marriage, for example if you have children, become unemployed, receive inheritance or acquire further assets. A pre-nuptial agreement can include what would happen in these circumstances.
- It is also important to include a periodic review within the agreement, because the length of the marriage can affect whether the agreement remains enforceable. Regular reviews of what has been agreed can help with this point…
Can I get a pre-nuptial agreement without a solicitor?
This is a risky course of action. As it stands, pre-nuptial agreements are not legally binding documents. However, an important Supreme Court case in 2010 set out that courts should give effect to a pre-nuptial agreement, provided it is freely entered into by both parties, with a full understanding of its implications, and as long as the agreement is fundamentally fair.
To satisfy that test, both parties should receive independent legal advice and give full information about their financial circumstances. This ensures that both have a full picture of the other’s financial situation within which to negotiate the terms of the agreement.
Will a pre-nuptial agreement stand up in court?
It is important to remember that pre-nuptial agreements are not currently legally binding in England and Wales. You cannot override the court’s ability to decide how your finances should be divided, should you divorce in future. However, should your relationship break down, a court must take into account a pre-nuptial agreement as a relevant circumstance of the case, if asked to consider how finances should be divided. The agreement is evidence of your intentions to one another…
Although the idea of a pre-nuptial agreement may seem unnecessary and highly unromantic, in many cases (especially where one or both parties have assets already) it is a very wise thing to consider. A pre-nup can provide peace of mind and reassurance, and help to avoid costly wrangling over money later down the line.
If you have any questions about this issue or any other family-related legal queries, you can email me, Sophie Smith, at: scsmith@cozens-hardy.com, or contact either me or one of my colleagues in the Family Team on: 01603 625231.