Janine Hutson from Harrison Drury’s Divorce and family law team offers some guidance to couples considering a pre-nuptial agreement.
There are many reasons why couples may want to get a pre-nuptial agreement before they get married.
It may be that they have been married before and have grown up children, so want to protect their own individual assets to benefit their children in future.
Alternatively, they could be a younger couple getting a prenup to protect their future inheritance. My colleague Helen Maguire looked at this issue in her recent post about how millennials are driving the growth in pre-nups.
They may have acquired significant business assets and want to protect these in the event of a divorce.
Whatever the reasons, here’s some practical advice for deciding whether a pre-nuptial agreement is right for your circumstances and ensuring it will be considered legally binding by the court.
1. Seek advice early on
The sooner an agreement is prepared and signed the better. If it is signed in the days or weeks before the wedding it could be suggested that there was undue pressure to sign as the wedding was imminent and arrangements had been finalised. Pre-nuptial agreements should be signed at least one month before the wedding date but ideally several months before.
2. Both take independent legal advice
Both parties should take separate legal advice from their own solicitors. Being advised independently on the terms of the pre-nuptial agreement ensures that both parties have had the benefit of their own legal advice about the terms of the agreement. It is then more difficult to suggest later that there was undue pressure or that one party didn’t understand what they were agreeing to.
3. Consider if the agreement is fair
Though the family courts in England and Wales can, and do, uphold pre-nups, it must be remembered they aren’t automatically legally binding. An engaged couple can record an agreement, but the court can still make a different decision if they later divorce. A pre-nup must be freely entered into by both parties, with full appreciation of the implications, and it must be fair.
Above all, fairness is the key consideration. For example, if one party has a significantly greater income than the other, it may not be fair to say no maintenance should be paid in the event of breakdown of the marriage. Anything that leaves a person (or their children) without their financial needs met is unlikely to be legally binding.
4. Disclose fully and honestly your assets, income and debts
Just like all financial assets must be disclosed upon a divorce, both partners need to be fully transparent when making a pre-nup. If financial assets are concealed then this could render any pre-nuptial agreement meaningless.
5. Consider the future
Circumstances will inevitably change as the years go by. Therefore, it’s wise to agree what will happen to any assets acquired jointly in the future after you are married. For example, if you acquire a new family home, will this be divided 50/50 if you divorced? Provision can be made in pre-nups for a review to be made at regular intervals, or upon changes caused by a life event, such as a new property purchase or having children together.
Janine specialises in advising clients on the division of assets as part of divorce or separation and is experienced in advising on pre-nuptial and post-nuptial agreements. For more information please contact Janine on 01772 258321.