The essential thing to do before you say
With over 1 in 3 marriages now ending in a divorce, more and more couples are thinking of entering into a pre-nuptial agreement than ever before. These agreements are usually associated with America or Europe but are becoming more common in the UK too. Now that couples are getting married later in life than before, they are now entering into marriage with their own established assets and are looking for a way to protect them.
Even though it might not be the most glamorous item to add on your wedding ‘to do’ list, it might just be the most crucial thing to get done before saying “I do.”
Unlike normal legal contracts, pre-nuptial agreements are not legally binding in the UK. However, UK courts are starting to take a lot more notice of them.
In a high profile 2010 divorce case, the Court had to decide whether a prenuptial agreement which said the couple would only have limited claims against each other in the event of a divorce, could be upheld. They decided that they should hold people to agreements that they sign as long as they understand what they are gaining/losing by signing, and providing that they sign up voluntarily. However, this is only true if the agreement still looks fair!
In simple terms, when entering into a prenuptial agreement you should have entered into the agreement willingly and have not been put under any pressure to sign. The couple should be very clear about what they may potentially be giving up and exactly what the prenup means for them. Whilst it’s not a requirement that legal advice is taken before the prenup or that the couple have complete knowledge of the other’s financial position it’s important that you can show you have a clear understanding of the agreement and its consequences.
We would always recommend that where possible, you seek legal advice from an expert in prenuptial agreements before signing one. In the unhappy event that you need to use the agreement in a Divorce then the Court will be more likely to accept a prenup that has been backed up with financial disclosure.
Perhaps the most important thing for a Court to consider is whether the prenuptial agreement is fair or not. The difficulty is predicting whether the agreement which seemed fair at the time, is going to look unfair in the event of a divorce which could be many years into the future! Your financial position and that of your partner can change greatly over time. Here are some steps that can help you alleviate that risk:-
1. If the Prenup seems unfair when it was signed then it is more likely that the court will allow the person that was unfairly treated
to get out of the agreement in the event of a Divorce.
2. As far as possible, get the Prenuptial agreement in place as far ahead of your wedding as you can. The closer it’s signed to the marriage day, the more likely the Court will consider that one of you may have been under pressure to sign and that the agreement hasn’t been thought carefully through.
3. Take care when you draft the prenup. Put in regular dates to review the agreement and make provision for children should you have them or plan to have them. This will all help to make the prenup a more attractive proposition for the courts.
4. As I said above, couples should think about getting expert legal advice, otherwise, the agreement could be ignored entirely by the court on divorce.
But what if you are already married?
It is still possible to enter into an agreement. This is called a post-nuptial agreement. As above, it can be used to regulate financial arrangements during the marriage as well as after separation. This type of agreement is mainly entered into upon separation when a divorce has not yet taken place. It enables both parties to agree on periodical payments, financial and property division and child arrangements.
In conclusion, even though these types of agreements are not automatically legally binding by law they are still taken into account by courts if properly prepared. Whether it is a pre-nuptial agreement or a post-nuptial agreement it is definitely worth the cost, not only for the wealthy but for anybody who is wishing to either protect their assets or to create some level of certainty in how those assets would be disposed of upon divorce.
If you would like more information on this or you have any questions, do not hesitate to email me at Andrew.firstname.lastname@example.org
Andrew Robinson is a Director and Head of Family Law at Fishers Solicitors. He deals with all aspects of family work including divorce, prenuptial agreements, financial and property disputes on separation, and disputes regarding children.