No one goes into a marriage or civil partnership contemplating that it won’t last but the reality is that unfortunately, some do come to an end. It often helps if, at the outset of the relationship, the parties have some open discussions and reach a consensus as to what would happen if they go their own ways in the future. Deciding whether or not a prenuptial agreement is right for you and your future spouse is a decision you need to make together.
If you have property, savings and/or investments prior to marriage/civil partnership that you wish to retain, or if you want to be clear from the outset how financial matters should be dealt in the event your relationship ends, then a Pre-Nuptial Agreement might be a good idea. If any of these circumstances apply to you, or your future spouse, a prenup may be particularly advisable:
- One partner brings significantly more assets or wealth to the relationship than the other
- One partner earns significantly more than the other
- One part has significant debts
- One partner has children from a previous marraige
- One or both partners own a business
By drafting one you can maximise certainty and minimise cost, risk and debate about what the agreed arrangements should the worst happen.
Are they legally binding?
Pre-Nuptial Agreements are not currently legally binding, however the Courts in the UK have followed them where the agreement is properly entered into and is not unfair. The Court has a wide discretion as to what Order to make when dividing assets as part of a divorce, whether they are assets in joint names, individual names, acquired during the marriage/civil partnership or prior. What will be appropriate depends on the facts of a particular case. A pre-nuptial agreement is designed to persuade the Court from declining to use that wide discretion, and to not deviate from the terms of the pre-nuptial agreement.
How do I enter into one properly?
Both of you will need to have your own solicitors advise you, and you will need to share with each other all relevant information about your respective financial circumstances. There must be no pressure from one party on the other to sign the agreement and in the case of a Pre-Nuptial Agreement it must be signed at least four weeks prior to the wedding/civil partnership. If you do not have enough time to finalise the agreement prior to the big day, you can enter into a Post-Nuptial Agreement.
It is important that any Pre- or Post – Nuptial Agreement is reviewed at least every 5 years, or if there is a significant change of events, such as the couple having a child, as the Court will not uphold an agreement that does not take the needs of children into account or is detrimental to their needs when deciding on a financial settlement.
How we can help
If you want to agree at the outset of your relationship what would happen should you split up, have personal assets you wish to protect, want to formalise the financial aspects of your relationship, or are being asked to sign an agreement and would like a legal opinion, please contact Richard Rodway in our Family team.