Our latest Family Law blog explains what pre-nuptial agreements are, when you should have one and whether they are legally binding.
What are pre-nuptial agreements?
A couple planning to marry or enter into a civil partnership may decide to enter into an agreement that provides for how they would like to divide their money and property if the marriage or civil partnership were to end.
Why have one?
Each couple will have different reasons for wanting to enter into a pre-nuptial agreement but can include:
- Where one party has significantly greater assets than the other;
- When one, or both, of you own assets acquired prior to your relationship that you would like to protect if you separate (this could be an inheritance or an interest in a family trust);
- When one, or both, have assets owned prior to the marriage they wish to protect, for example a business;
- When one, or both, have foreign assets or a connection with another jurisdiction.
- When one, or both, has previously divorced or separated and would like more certainty as to financial settlement if you separate; and
- When one, or both, has children from previous marriages/relationships and would like to protect certain assets tied into your will or inheritance planning.
Are they binding?
In England and Wales pre-nuptial agreements are not technically binding in the event of a divorce or dissolution of a civil partnership, but pre-nuptial agreements are something that a judge will consider. A judge will not implement a pre-nuptial agreement if the terms are clearly unfair.
What can be done to make it more likely to be binding?
There are certain steps that if undertaken may be more persuasive to a judge in finding the pre-nuptial agreement should be adhered to, these include:
- Each party taking independent legal advice prior to signing any agreement;
- If you and your partner have been prompt, transparent, and honest in providing your financial documents (called financial disclosure) to the other;
- If the terms of the agreement are ‘fair’ (for example it would be unfair to leave one party without the means to rehouse themselves on separation); and
- Ensuring there is no duress or undue influence on any party to sign the agreement.
There are also legal requirements to ensure the agreement is valid, such as executing the agreement as a deed and having the deed witnessed by an independent party.
It is good practice to ensure that the agreement is finalised and executed as a deed before the wedding (typically a minimum of 21 days). This is why it is important to ensure you are prompt in preparing your financial statements, if you have numerous or specialist assets this process can be lengthy. This also gives your partner the chance to find their own legal representation and the chance to review any draft documents and make any amendments before the wedding.
What else do I need to know?
Your pre-nuptial agreement is bespoke to you and your partner, no two pre-nuptial agreements look the same and can include any assets you wish.
You can also have terms in the agreement that permit reviews at certain intervals or milestones, such as having children.
It is possible a court may uphold some parts of the pre-nuptial agreement whilst not upholding others.
You should remember that the court has the final say in the event of a divorce, if you cannot agree how to separate your finances and one party contests the agreement then this may be something you have to pursue via the courts.
We can help you with negotiating and drafting the terms of an agreement either through discussions and correspondence or through the collaborative law process.
Remember, just because you have a pre-nuptial agreement does not mean you are more likely to get divorced!
If you need any advice or think a pre-nuptial agreement is right for you, speak to Joanne Millward or Emma Adcock, our family solicitors to find out how we can help. Contact us on 03456 465 465 or email enquiries@rotherabray.co.uk
Disclaimer: This blog is for information only and does not constitute legal advice. If you need legal advice please contact us on 03456 465 465 or email enquiries@rotherabray.co.uk to get tailored advice specific to your circumstances from our qualified lawyers
