I do, do I?! Would you consider a Pre-nuptial Agreement?
Now that the government have officially announced that wedding receptions can take place once again, albeit with a maximum of 30 attendees and only with social distancing in place in a ‘COVID-19 secure venue’, brides and grooms are resuming preparations for their big day. Whilst it may not be the wedding day that some envisaged, many couples will be relieved and excited to know that they can have their wedding this year and start their new lives with their spouse.
Right now, invitations, table decorations and flower arrangements might be consuming their thoughts! Whilst these are of course very important details, for those who are planning a wedding, now is also the time to think beyond the wedding day and to the marriage itself.
Very few people walk down the aisle thinking about what would happen if their marriage ended! Despite this, the fact remains that 42% of all marriages end in divorce (Office for National Statistics 2019).
As unromantic as it sounds, more and more people are entering into pre-nuptial agreements prior to their marriage. These agreements are no longer the domain of super-wealthy celebrities or heirs and heiresses to family fortunes. Most people have something that they want to protect, even if it is only for their peace of mind. These people are increasingly looking to protect their wealth in a formalised way.
Money and communication are amongst the top causes for conflict within a marriage, and if the relationship breaks down, these conflicts are all the more heightened. It can therefore be extremely beneficial to sit down and agree on important financial matters before your relationship breaks down – this could prevent an acrimonious, costly and lengthy legal battle later on.
Who is entering pre-nuptial agreements nowadays, and why?
– Millennials, who are statistically marrying later – They may have had more time to build up their assets and increase their income pre-marriage and they may want to protect this in the event that they divorce.
– People who have been married previously – Having been through the divorce and financial process before, those who have been married before are often keen to avoid the uncertainty and costs of divorce and financial proceedings. They may also want to protect their finances for their children from previous marriages. Sometimes, they are paying maintenance to an ex-spouse and they might therefore want to protect their income by seeking to limit the new partner’s claims on marriage.
– Those who are concerned about their partner’s level of debt or their ‘debt-prone’ nature – Should your relationship break down and an application is made to the court for a financial order, both of your debts will be taken into account and will generally be considered ‘matrimonial debt’, which means they could be subtracted from the total matrimonial asset pool. For those who do not want their partner’s individually incurred debts to be settled from the joint assets, a pre-nuptial agreement could protect against this.
– Those with significant business interests, particularly, those who are involved in family businesses – There can be many issues that come up when dealing with a business post-marital breakdown, particularly as business interests could form part of the matrimonial pot. Having a pre-nuptial agreement setting out how business interests will be dealt with could be beneficial in protecting that business interest. The agreement could for example set out the value of the business prior to the marriage, specify how the business will be valued at the time of divorce or even set out what share of the business a spouse will receive on divorce.
There are a lot of misconceptions when it comes to pre-nuptial agreements and often the biggest source of confusion is whether they are legally binding.
At the moment, a court is not bound to uphold the terms of a pre-nuptial agreement when making a final financial order. However, following the Supreme Court decision in the landmark case of Radmacher –v- Granatino the laws in the UK concerning pre-nuptial agreements developed.
In their judgement on this case, the Supreme Court said:
The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
It is important to remember that no agreement between the parties can override the judge’s power to decide on the appropriate division of assets on a divorce. This means a pre-nuptial agreement cannot stop a spouse applying to the court for financial provision from the other spouse. The pre-nuptial agreement will be considered by the court as a relevant circumstance of the case, but never the deciding factor.
We advise that you should sign a pre-nuptial agreement at least 28 days before the wedding. This helps to evidence that the agreement has been entered into freely and that there has not been any undue pressure (particularly for the financially weaker party, who may worry that the wedding will be called off if they do not sign). An agreement that is signed less than 28 days before the wedding may need to be reinforced with a post-nuptial agreement, however, it is easy to forget to do this after the wedding!
Obtaining legal advice on an agreement that you’re being asked to sign and receiving disclosure of your partner’s assets can help to evidence a full appreciation of the implications of the agreement. Our family team are experienced at both drafting pre-nuptial agreements and advising on them.
If you would like further information, please contact us through the enquiry form below or on 01276 686222 and ask to speak to a member of the family team.
This reflects the law and market position at the date of publication and is written as a general guide. It does not contain definitive legal advice, which should be sought in relation to a specific matter.
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Herrington Carmichael offers legal advice to UK and International businesses as well as individuals and families. Rated as a ‘Leading Firm 2024’ by the legal directory Legal 500 and listed in The Times ‘Best Law Firms 2023 & 2024’. Herrington Carmichael has offices in London, Farnborough, Reading, and Ascot.