Before you say ‘I do’....the pre-nup
If you're getting married, have you thought about a pre-nup? Here, family law solicitor Amy Fallows tells you why more and more couples are getting pre-nups before saying 'I do'.
What is a Pre-Nup?
A Pre-Nup (or to give it its Sunday name, a pre-nuptial or pre-marital agreement) is a legal agreement made between two people before their marriage has taken place.
Generally, the pre-nup sets out who gets what from the couple’s assets if they later separate or get divorced. A similar type of agreement exists for anyone entering into a civil partnership and is catchily called a pre-civil partnership agreement!
A Pre-Nup doesn`t sound very romantic – aren`t they just for gold diggers and rich people?
Admittedly, talking about a pre-nup with your loved one can be a bit of a tense or awkward time as they have generally been regarded as a bit of a cold and calculated document used by rich people to protect their wealth from potential gold diggers.
Nowadays more and more of us are embarking on second marriages or taking the plunge later in life and so already have our own homes, pensions and savings. It therefore makes loads of sense to take steps to ensure that you preserve any assets you have previously built up should things go wrong second time around.
Equally where one party has a family business, they may wish to take steps to protect it from their spouse in the event of a divorce.
What can you put into a Pre-Nup?
A pre-nup can deal with most things except the care of any children of the marriage. They can deal with division of the assets of the marriage including maintenance. They can also provide for individual assets to be kept separate from the assets of the marriage such as any savings or pensions accrued before the wedding or any interests in property.
The key is for each party to access independent legal advice and for the parties to provide each other with full and frank disclosure of their assets and liabilities. That way, the pre-nup will be based on accurate and solid evidence and the parties will be making the decision to sign it knowing where they each stand at the start of the marriage.
That sounds like a lot of work and some difficult conversations – what if I don`t want my other half to know about all my assets?
They can be difficult conversations to have but if you’re considering embarking on a marriage then the ability to be honest with each other and have difficult conversations kind of comes with the territory! Plus being honest and reviewing your practical matters now means that moving forward you both know where you stand and have realistic plans in place for dealing with your assets and liabilities before and during (but hopefully not after) the marriage.
I`ve heard that a pre-nup isn`t worth the paper it`s written on – is that true?
It`s true that a pre-nup isn`t legally binding in England and Wales. It can`t oust the jurisdiction of the matrimonial court to make decisions in respect of family financial matters. The Court is primarily concerned with making sure that the needs of the parties are met and that a fair settlement is reached.
The Court will consider any pre-nup the parties have made when doing this and will give effect to a pre-nup that the parties have freely entered into fully understanding the implications of it. The Court will only move away from this if it would be really unfair to hold the parties to the agreement.
In considering what is fair, the Court look at the needs of the parties and any children and whether each party has a fair share of the matrimonial assets.
There are ways in which parties can make their pre-nup stand a better chance of being a strong piece of evidence:
- It should be executed at least 28 days before the wedding.
- The parties should disclose details of all their material assets to each other.
- Both parties should receive independent legal advice.
- The agreement should have built in review periods to cater for changes in the parties circumstances.
A pre-nup is a notoriously tricky legal document. It should be carefully prepared on the basis of full disclosure by the parties after they’ve both received full legal advice on the nature and consequence of the pre-nup. Failure to do this can mean that you end up paying a lot of money for a document which is quite literally not worth the paper it’s written on!
If you need further advice or wish to make an appointment to discuss preparing a pre-nup then contact a member of the Family team on (01228) 552222.
About the Author
Amy is a family law Partner and the coordinator of the employee benefits scheme.
Published: Tuesday 3rd May 2016
Categorised: Family Law
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