Planning a wedding? Have you considered a pre nup?
Valentine’s Day can be the perfect time to make or accept a marriage proposal.
Planning your wedding is never an easy task and the thought of making a pre-nuptial agreement with the love of your life might not be something at the forefront of your mind when you are planning your celebration. However, if you are coming into the marriage with a lot more capital or income than your other half or you want to protect family wealth or an inheritance, a pre-marital agreement is something that should form part of your wedding preparations.
What is a pre nup?
A prenuptial agreement (commonly referred to as a ‘pre nup’), is an agreement which a couple make before they marry, setting out how they want their assets and income to be shared if they ever separated and divorced. Having a conversation about what should happen at the end of the marriage before you have even tied the knot is not very romantic to many, but pre nups can give you peace of mind and reassurance before you commit to marriage knowing that the agreement to share or ringfence assets has already been decided.
Media coverage of celebrity pre nups has led to the common misconception that pre nups are only needed by the rich and famous, which is not the case. Whilst it may not be the most exciting part of planning a wedding, having an honest and open discussion with your loved one in advance of the big day could lead to a lot less heartache later on because you have already removed the burden of that conversation regardless of what your assets are worth.
How does it work?
The intention of a pre nup is to provide clarity and certainty about your finances in the event of a breakdown of the marriage, to save the time and stress of arguing about them at a later stage. Commonly, a pre nup is put in place to protect certain assets so that they are ring-fenced from the matrimonial pot. For example, if a partner is entering the marriage with an inheritance or property which they accrued prior to the marriage, they may wish to enter into a pre nup with the aim to protect that asset in the event of future separation. If the couple do eventually divorce, the pre nup will be a relevant factor when considering financial settlement. Assets bought together during the marriage are usually shared in a pre nup OR the agreement can provide for assets to be shared in proportions to how a couple paid for them.
Pre nups can be particularly useful in second marriages where a couple are coming into the marriage with their own assets which they want to protect for their children from past relationships.
Are pre nups legally binding?
For a pre nup to be binding there are certain conditions: –
- The agreement must be freely entered into.
- Both parties must understand the implications of the agreement.
- The agreement must be fair.
- The agreement must be contractually valid.
- The agreement should be made at least 28 days before the wedding.
- There should be some form of financial disclosure.
- Both parties should receive legal advice.
- The agreement should not prejudice any children.
- Both parties’ needs should be met.
In 2010, the Supreme Court held that Courts should give effect to a pre nup agreement that was freely entered into by each party with a full appreciation of its implications unless there are prevailing circumstances that would make it unfair to hold the parties to their agreement. This ruling means that pre nups will not be binding in all cases and the fairness of upholding any pre nup is considered by the court on a case by case basis.
If the needs of both parties cannot be met from the assets available at the time of divorce, any assets protected by the pre nup may be drawn into the matrimonial pot as available to each party to meet needs. For example, if there is not enough equity in a family home to house both parties on divorce, and there are no other available assets, then a property which was protected by a pre nup may have to be shared in proportions that conflict with the terms of the pre nup.
For a pre nup to be worth the paper it is written on, a couple should be independently legally advised. Our solicitors at Townsend Family Law can help you with the preparation of a the pre nup or we can advise you on the pre nup already drafted. If you are concerned about protecting your assets on marriage, please feel free to call our office on 01992 892214 to make an appointment for a reduced rate first consultation at £150 inclusive of VAT. Alternatively, you can email us on email@example.com