At this time of year, people are readying themselves for their upcoming wedding, or even making arrangements for their 2023 wedding.  You may be planning for your first, second or maybe third wedding and, for all couples, especially those who marry in later life, a pre-nuptial agreement is advisable.  Contrary to popular myth, pre-nuptial agreements are not just for the rich and famous. Most couples can benefit from the peace of mind which a pre-nuptial agreement can bring to those about to marry. Tricia Gower, Partner in our Family & Relationships department, explains more here about pre-nuptial agreements, what can and cannot be included and how they can help in certain situations.

What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement as to how assets should be divided if a couple decide to divorce.

What can be included in a pre-nuptial agreement?

A pre-nuptial agreement can set out what is to happen to:

  • Any property owned
  • Capital
  • Investments
  • Pensions
  • Income
  • Any inheritance you have had or will have in the future
  • Possessions and valuables

A pre-nuptial agreement can also provide that one party is not responsible for the other party’s debts or liabilities.

When entering into a pre-nuptial agreement, we would recommend you begin by listing all of the assets you have, both jointly and solely, and then agree between you if and how they should be divided.  You may wish to consider whether division would depend on the length of the marriage.

When is a pre-nuptial agreement needed?

There are several reasons why a pre-nuptial agreement would be a sensible course of action before you marry:

  • A pre-nuptial agreement is useful for all couples but especially for those who are marrying in later life.  There may be significant accumulated wealth or pension funds, which the parties wish to protect for their own future or to pass on to their children.
  • If one party has built up a business, he/she may wish to exclude that business from any potential claims by the other spouse.
  • Sometimes parents contribute towards a property purchase for the couple.  In this situation, a pre-nuptial agreement can provide that any financial contribution by other family members, should be returned or shared by the couple should the marriage break down.

These are the sort of provisions which can be included in a pre-nuptial agreement, however there are many scenarios that can be covered, all of which we can discuss with you.  Without a pre-nuptial agreement, you could end up in a financial dispute which can only be rectified with Mediation, Collaborative Law or a lengthy Court battle.

What cannot be included in a pre-nuptial agreement?

A pre-nuptial agreement cannot be used to set out arrangements for children e.g. when the children will see the other parent.   Such arrangements can be set out in a Child Arrangements Order which is subject to different legislation.  A pre-nuptial agreement cannot be used to agree matters relating to lifestyle or personal matters.

Can a pre-nuptial agreement be changed during the marriage?

Some couples may feel reluctant to discuss entering into a pre-nuptial agreement believing that it shows a lack of trust in the other party.  However, many couples now see that it is a sensible precaution and can help to avoid unnecessary acrimony should the relationship break down.

A pre-nuptial agreement can be varied by agreement as the marriage progresses and can be converted into a post-nuptial agreement.  It is advisable to review both pre and post-nuptial agreements every few years or if there is a significant event such as the birth of a child.

When does a pre-nuptial agreement expire?

A pre-nuptial agreement doesn’t expire but lasts for the entirety of your marriage, subject to the changes referred to previously.

Can a pre-nuptial agreement be overturned?

The terms of a pre-nuptial agreement are not automatically adopted by the Courts;  however, a pre-nuptial agreement that meets the following criteria would require the Court to take it into consideration when determining how the assets are to be divided:

  • The agreement has been freely entered into
  • Both parties had full knowledge of the assets
  • It was prepared well in advance of the marriage
  • There was no undue influence
  • Both parties have received independent legal advice

If the Court considers the pre-nuptial agreement to be fair and it meets the financial needs of each party, the Court is more likely to uphold the pre-nuptial agreement than not.   A pre-nuptial agreement therefore brings some certainty and a degree of financial protection should parties decide to divorce.

It is understandable that couples may feel reluctant to discuss a pre-nuptial agreement with their future spouse, however it is a common myth that pre-nuptial agreements are only for celebrities or those with vast wealth.  As demonstrated here, that is not the case, and we would urge any couple marrying later in life or those with a business or inheritance to consider a pre-nuptial agreement.  To discuss your situation with Tricia or a member of the Family & Relationships department you can contact us today on 01722 41200 or email moc.n1669567663ellub1669567663rekra1669567663p@rew1669567663og.ai1669567663cirt1669567663.

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.

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Tricia Gower

Partner

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