Love after lockdown - what should you consider with pre-nuptial agreements?


15 July 2021

Post 19 July there are likely to be a flurry of weddings and partnership ceremonies as those whose plans were postponed in the last 18 months can finally tie the knot in the way they would like.

If you are planning to get ‘hitched’ then do add ‘consider entering into a pre-nuptial agreement’ to your ‘to do’ list. They are no longer exclusive to the couples inhabiting the pages of Hello or those that walk on red carpets.

If you have assets that you have acquired before your relationship/marriage/partnership, have built up a business, anticipate an inheritance, your family has assets they wish to protect, or you are generally worried about what would happen in the event that things don’t work out with your beloved, you should sit down with one of our senior family lawyers for a chat.

You need to leave enough time to plan. Ideally pre-nuptial agreements should be entered into a minimum of 28 days before the ceremony. You both need to disclose your finances to the other person, you both need to obtain independent legal advice, the document needs to be executed as a deed, with no evidence of duress, and the agreement should build in the possibility of reviews for significant events such as the birth of a child and regularly over time. If English is not your/your partner’s first language then we would advise having the documents and advice translated to ensure that the implications and obligations are understood.

Whilst pre-nuptial agreements are not yet recognised in legislation, the courts in England and Wales will take them – and the agreements you set out in them with regards to what assets you want to have excluded from any divorce settlement - into account when making decisions about financial issues relating to divorce or dissolution. Unless the court thinks that the outcome achieved is palpably unfair, you are likely to be held to it. Even if the court thinks it is unfair, it may well still factor the existence of the agreement you reached into its order, and make an order for less than the financially weaker party might have received if there had been no pre-nuptial agreement. You should therefore enter into such an agreement on the basis that the court will enforce it.

What is a pre-nuptial agreement?

This is an agreement reached by two people getting married or entering into a civil partnership, before the ceremony. The agreement is about what would happen financially in the event of relationship breakdown. The agreement will usually envisage that there will be reviews from time to time, particularly when the parties have a child.

Why are pre-nuptial agreements important?

They can be very useful in situations where one party has pre-acquired wealth and wishes to protect this. This could be a single asset like a property. Or a family business for example.

Why should you have a pre-nuptial agreement?

To protect yourself in the event of relationship breakdown which may or may not happen. You are more likely to have a rational and reasonable discussion before the marriage or partnership is entered into than in the throes of relationship breakdown.

Do you need a pre-nuptial agreement?

No, but it is worth exploring whether it is something that would be sensible for you to consider in your particular circumstances.

If you are planning your wedding or partnership ceremony and would like to find out more then please contact Rachel Frost-Smith on 01223 643133 or [email protected]. Alternatively, please get in touch with another member of the Birketts Family Law Team.

The content of this article is for general information only. It is not, and should not be taken as, legal advice. If you require any further information in relation to this article please contact the author in the first instance. Law covered as at July 2021.

Author

Rachel Frost-Smith

Senior Associate and Solicitor-Advocate (Higher Rights Civil Proceedings)

+44 (0) 1223 643133

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