Starting a new relationship can be an exciting time and you probably don’t want to think about what might happen if things go wrong in the future. You do however want to be practical and plan for all eventualities, to reduce potential future uncertainties and distress should your relationship break down.
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In recent years the Courts in the UK have increasingly attached importance to written agreements entered into by a couple either before they marry, or during their marriage. A verbal agreement is not accepted by the Court as a legally binding agreement. Similarly a written agreement entered into by a couple separating without legal advice, or a statement of intent by one of them is unlikely to be recognised by the Court as legally binding. This is because certain procedures need to be followed when entering into a pre- or post-nuptial agreement. If these procedures are not followed, then your partner may be able to claim that the agreement is invalid and make an application for the Judge to determine how your assets should be divided.
Our specialist family law team can give you expert legal advice about pre- and post- nuptial agreements, prepare bespoke agreements for you and help and guide you through the processes which must be observed. We know every relationship is different and we make sure the agreement will suit your own circumstances.
We adopt a flexible approach to working with our clients, with services available at a time and place to suit you, be it in person at one of our offices, your home or place of work, or by phone or email. We communicate clearly without legal jargon and provide clarity from the outset about your legal fees. We offer a range of payment options, such as fixed fees, pay as you go and payment by instalment, to help you through the legal process.
What is a prenuptial agreement?
A prenuptial agreement (sometimes called a pre-nup, premarital agreement, or prenuptial contract) is an arrangement entered into by a couple before they get married. This agreement is designed to regulate what should happen if a marriage breaks down and ends in divorce.
If you are planning on getting married and you or your partner's family have an asset such as a business or farm that they want to pass on, a pre-nup can help protect it. Pre-nups can also be important in second marriages, or in marriages where one or both parties have brought wealth to the marriage.
What is a postnuptial agreement?
A postnuptial agreement (also called a post-nup or a post-marital agreement) is designed to deal with the same situation as a pre-nup – in other words, deciding what should happen to each partner’s assets after divorce. However, unlike a premarital agreement, which is agreed before a couple is married, a postnuptial agreement is entered into by the couple during their marriage. A post-nup can be a good thing to consider if you have previously separated but are now in a relationship again, and you want to avoid uncertainty if things go wrong again.
No one wants to believe that their marriage or civil partnership will end in divorce and these agreements are often seen as unromantic and dooming a marriage to failure. In reality however marriages and civil partnerships do breakdown and having a pre-nupital or post-nuptial agreement or pre or post-partnership agreement in place can avoid the time, expense and animosity experienced in many divorce cases.
Ideally, a pre-nup agreement should be considered and discussed well ahead of your marriage taking place. You and your future spouse should each have the benefit of legal advice and disclose your finances to each other. The pre-nup should also be signed in good time before your wedding day.
Pre-nups and post-nups are not strictly binding in England and Wales in the same way as a commercial contract would be. However, the Courts have ruled that where agreements are freely entered into by each party – with a full appreciation of the implications – the court will hold the parties to the prenuptial or postnuptial agreement unless it would be obviously unfair to do so.
The court will consider the following factors when deciding whether or not to hold a couple to a pre-nup agreement:
- Did each of you have independent advice from prenuptial lawyers before the agreement was signed?
- Did each of you make full disclosure of all material financial circumstances and other relevant matters at the time the agreement was signed?
- Did either of you sign the pre-nup under undue pressure?
- Do the terms of the agreement meet everybody’s needs, including those of your children?
Not all prenuptial agreements will be upheld, nor are they automatically binding. However, if you are the financially weaker one within the marriage, you should assume that the pre-nup agreement will be upheld. By entering into the pre-nup you are signing up to the expectation that it will be.
Sometimes it is possible to improve on the terms of premarital agreements in a subsequent divorce. For example, if basic housing or income needs are not met for yourself and any children you are looking after. But you should be very careful and take independent advice from a prenuptial lawyer before signing any post or prenuptial contract.
This area of law is changing rapidly. All of OTS expert divorce lawyers will be able to discuss the latest developments with you if you need further information.
The best form of wealth protection from an unwanted divorce settlement is – rather unromantically – not to get married at all. The law for cohabitants is radically different from the law relating to married couples. The Courts have far less power to deal with the transfer of assets and award maintenance.
For those who do get married, premarital agreements are increasingly the best option.
They are particularly useful for those starting a second marriage or marrying later in life – where you may wish, for example, to ring fence what you brought into the marriage from your earlier relationship, or ensure that you can pass it on to your children from that relationship.
Pre-nups can assist in minimising the financial and emotional impact on the family if there is a divorce. But they should not be entered into lightly or without full consideration of their implications.
It is often best as well to keep assets separate, in one’s sole name. For example, if you have brought a substantial shareholding or property into the marriage, as well as signing a premarital agreement, it is best to keep that property in your own name, and not put it into joint names.
There are other ways of protecting existing wealth in addition to or instead of pre-nups or post-nups (trusts, for example).
Pre-nups should be considered in the following types of cases:
- If you wish to protect your business interests, trust interests, inherited wealth or assets owned before your marriage
- If you would like to be clear about what the financial arrangements will be in the event of a divorce
- If you wish to reduce the likelihood of incurring significant legal fees in the event of divorce
Perhaps most importantly, premarital agreements are useful in providing evidence of what property was brought into the marriage. This is called non-matrimonial property. It is therefore less likely to be divided equally, because it is not the product of your marriage partnership. Having evidence of what properties or savings were brought into the marriage, particularly if it is a short marriage, is very helpful.
The cost of your pre-nup will depend on many factors, including:
- How complex the agreement is likely to be in terms of what needs to be covered
- How much financial disclosure is required and whether it will require expert evidence (such as somebody to value a business or accountancy support)
- Whether your partner plays a full role in the negotiations or leaves everything to you
- Whether the agreement has to deal with international aspects, requiring evidence and advice from a foreign lawyer
- How much correspondence is sent, and the number of meetings that are needed, to finalise the agreement
- Whether an experienced barrister needs to be involved in hammering out the details of the agreement
All of these factors dictate how easy or hard it will be to reach agreement on the terms of the pre-nup and therefore the cost.
OTS dedicated family lawyers and prenuptial lawyers are able to offer a fixed fee service in preparing prenuptial agreements and postnuptial agreements. Please contact any of our family lawyers to discuss your circumstances and the likely fixed fee.
Posted on: Friday, 15 September, 2017