No one goes into a marriage with the end of their relationship in sight. On the contrary, people who choose to marry often have every intention of upholding the famous ‘till death do us part’ vow. However, life does not always pan out exactly as planned, and this is where the sometimes sensitive but often necessary topic of prenuptial agreements comes into play.
Understanding the Prenuptial Agreement
In the simplest terms, a prenuptial agreement (also known as a ‘prenup’ for short) constitutes a legal document between spouses that outlines how their finances and assets (properties, furniture, and other possessions etc) are to be divided in a fair manner between them in the event of their divorce or if one spouse passes away. This document is drawn up and signed before both parties get married, often as a way for each of them to protect personal assets that they would want to retain sole ownership of should the marriage breakdown. Protecting one’s inheritance, for example, is a common interest here.
Benefits of Getting a Prenup
Aside from providing both spouses with peace of mind if ever their relationship where to end, a prenup can also act as a form of insurance against the high costs of entering into litigation to resolve any disagreements that might arise over ‘who gets what’ if a divorce occurs. It also helps shorten the divorce process by providing a straightforward, pre-determined plan to follow instead of spending months in court going back and forth over the particulars and accumulating large legal fees in the process.
Prenups have typically been perceived as the domain of celebrities or of the very wealthy to help manage their many houses, cars, businesses, or investments that they already own before going into a marriage. However, recent trends have shown a marked increase in prenups across all marriages, particularly in the case of individuals who have previously been married, as this can enable them to secure their existing children’s assets or inheritance. Other contributing factors can include protecting one’s pension or personal cash that has been saved or set aside.
Guidance on Getting a Prenup
Despite the fact the prenuptial agreements are not technically legally binding, they are referred to and relied upon in court so long as:
- The agreement has been completed at least 21, and preferably 28, days before the wedding ceremony takes place
- Both parties have obtained, or had the opportunity to obtain, separate and independent legal advice upon the agreement
- Both parties have provided full disclosure of their capital and income resources, including the likelihood of any future inheritance if relevant
- Both parties have entered into the agreement freely and willingly and with a full understanding of the effect of the agreement
- The agreement does not give rise to any manifest unfairness (Note: the Court will always retain the ability to make financial provision for any children if necessary)
Breaching the Topic
If you have decided that you want to pursue a prenup before marrying your partner, it is important that you communicate this to them clearly and with tact. The subject of finances is generally a sensitive one to discuss, let alone within the context of a relationship, and so it is key to remain calm and balanced whilst explaining why you feel that a prenup is a good idea.
If you both want to complete an agreement think about seeking advice in good time to ensure compliance with the above.
As outlined above, prenups are objectively beneficial to both parties involved as they help to protect and define each individual’s interests and responsibilities in the event of a divorce – knowing this may help to reassure your partner as to why one may be necessary. Be sure to bear in mind that you will likely need to be prepared to compromise on certain points in the agreement so that their wishes are respected as well. Remember, you both need to be in full agreement when drafting and signing your prenup for it to be considered valid.
Neil Graham, a Partner at Grayfords comments as follows: “Although pre and post nuptial agreements are not currently fully binding and completely watertight, the relevant case law has shown that the Courts will be reluctant to interfere with the terms of an agreement where the specific conditions identified above have been fulfilled. Agreements are often entered into with the aim of protecting assets that have been generated outside the marriage but the universal benefit of avoiding the need for any arguments, acrimony, and significant legal fees, in the event that things do not ultimately work out in the future, cannot be overstated. It is important to ensure that the agreement is properly drafted and that specialist advice is sought when completing the agreement to ensure that it fulfils the conditions under the current law as well as complying with any possible changes to the law in the future. Like a reserve parachute, hopefully it will never be relied upon, but it is always better to have one when you need it.”
If you are contemplating a prenup but are unsure of where to begin, our solicitors can help you with their wealth of experience in dealing with prenups, marriage, divorce and other family matters. Don’t hesitate to book a free consultation to speak with one of them without delay and find out more about how Grayfords can help.