7 reasons why considering a pre-nuptial agreement is a good idea
When you’re walking down the aisle towards your chosen life partner, it’s difficult to believe that one day your dreams of a long life together could be over. Unfortunately for some, the truth is that they may break up. UK statistics show that around 1 in 3 people are getting divorced and 2 in 3 of those people re-marry.
Breaking up can be a hard concept to accept; especially if you are deeply in love and believe in being happily married for eternity. However, as with any dream, sadly, there can be a harsh reality.
When two people get married, they are, in the eyes of the law, seen as ‘one’. This is because in marriage, as the old saying goes; ‘what’s mine is yours’. Are you getting married without any guidelines in place as to what will happen in the event of a breakdown? In this situation, it is left to the courts to use their own discretion and divide the assets between the parties in a way they believe is fair and reasonable.
How pre-nuptial agreements work – a case law study
A pre-nuptial or ‘pre-nup’ agreement allows the parties to agree before the marriage how they wish their finances and assets to be divided, in the event of the marriage breaking down. Such agreements were previously seemingly for the super-rich. However, recently family lawyers have noticed a significant increase in the creation of pre-nup agreements. This is following the landmark case of Radmacher v Granatino, 2010.
In this case, for the first time the court ruled that a pre-nup agreement would be upheld unless one person can show why it should not be. Although not legally binding, pre-nups have become far more sought after, due to their significant weight when produced in a court of law.
7 reasons for making a pre-nuptial agreement
- There are assets and/or property that would be hard to split 50/50.
- You and/or your partner have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights. (It is also crucial to make a Will for the same reason).
- You want to protect inherited money or assets.
- You want to safeguard substantial savings or expected future inheritance.
- You want some say in how financial issues would be resolved in the event of the marriage breaking down (especially if you’ve suffered unfairness in a previous divorce).
- Either party own a business which they’d like to retain control of (including the possibility of increase in the business profits).
- If your partner has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable for that debt.
One of the main reasons for a marriage breaking down is the lack of financial transparency between a couple. Having a pre-nup is a great opportunity for you both to go into your marriage with your eyes wide open. It allows each of you to begin life together knowing what the current financial picture is and what it will look like in the event of a divorce. If one person in the relationship is asking for a pre-nup, that person should expect to pay for both solicitors (as you will each need to be independently advised), and your solicitor will be there to advise you of your legal rights.
The requirements for a pre-nup agreement
A pre-nup agreement in the UK (note that laws differ between in England and Wales, and Scotland) is a sophisticated document and one for which you will need tailored advice, whether you are the person driving the decision or not.
For a pre-nup to carry the most weight:
- It must be signed at least 28 days (and usually no more than 12 months) before the wedding.
- There must be full and frank disclosure on both sides of the finances.
- You must each have independent legal advice.
- Its terms must be fair (ie, the circumstances at the time of divorce, the impact on the settlement of life events and the length of the marriage).
Pre-nups can take a few weeks to negotiate, depending on complexity and the negotiating positions taken, so if one party is pressing for an agreement, it would be advisable to start the process at least 4-5 months before the day of your wedding.
The benefit of a pre-nup agreement
As mentioned above, there are many benefits of a pre-nup, however, the main benefit is that it gives certainty of outcome in the event of a divorce and minimises the risk of costly, acrimonious litigation.
The decision is made fairly
It is, however, ultimately the judge’s decision. The court’s has the power to approve the financial arrangements of the couple and is their primary job to check that financial needs (for housing and to ensure day to day income needs) are met fairly.
In summary, pre-nups give the couple the autonomy to decide the outcome of what would happen in the event of the marriage breaking down, and such agreements are considered by many to be worth their weight in gold.
If you would like a free, no obligation talk through the ins and outs of making a pre-nuptial agreement, please contact Frances one of our family law specialists by email or by phone. This initial conversation is free of charge as it is more important to us that we understand how best we can help you.
If you decide to use our services we will be clear and upfront about how much the service might cost and how long it is likely to take.