PRENUPTIAL AGREEMENTS – A WORTHWHILE INVESTMENT
18 / 06 / 2020
The notion of prenuptial agreements is commonly associated with the fabulously rich seeking to protect their holiday home in the French Riviera. Although nuptial agreements have traditionally been thought of as the preserve of the very wealthy, these agreements are fast becoming a popular choice for couples from various walks of life. The three lawyers in Wedlake Bell’s Family team who advise on pre-nuptial agreements usually advise on one agreement per week, amounting to in the region of 50 pre-nuptial agreements a year.
What does a pre-nup do?
A prenuptial agreement helps to protect financial assets accumulated before your marriage, and sets out what should happen if you divorce or dissolve your civil partnership. The pre-nup should clearly set out the basis for dividing your assets and jointly owned assets such as property, investments, and pensions.
The agreement can also set out what type of maintenance may be paid in the event of a divorce and may also set out different conditions for dividing your assets depending on the reasons for a divorce.
Nuptial agreements are usually entered into when there is a common intention to find an agreement which works best for both parties. Negotiating these agreements after the end of a relationship, when parties are filled with animosity, is usually not the ideal time to find workable solutions for the common good.
Do I need a pre-nup?
As the age of those entering into first time marriages continues to rise, many couples have spent time amassing more, in terms of assets, on their own, which they want to shield from the prospect of divorce. Nuptial agreements form the best insurance parties can enter into, to give certainty in the event of a family breakdown.
There is still no absolutely watertight route to limit or define the assets receivable by one party to a marriage following marital breakdown.
All those contemplating marriage will be wise to consider the financial consequences of marital breakdown. Think of the consequences to others where there is a family business or shareholding, where there are existing dependents, if one party introduces significant assets, if there is inherited wealth, or significant disparity of asset base. If one intended spouse has assets or resources overseas, both may need advice on otherwise unforeseen taxation consequences of property ownership and worldwide income.
You may wish to think about getting a pre-nup if:
- This is not your first marriage and especially where there are children from a previous relationship whom you would wish to protect.
- You have substantial assets which you have acquired before your relationship which you would like to preserve, for example, property investments such as rental properties, second homes, land or inherited property.
- There are expectations of future inheritances on one or both sides.
- The “bank of mum and dad” or other family member is gifting the couple money, for example, to put towards a property purchase, it is sensible to have a nuptial agreement saying that in the event of divorce that money would stay with the spouse whose family gifted the money.
- A family may wish to protect wealth that has been passed down the generations and has great significance beyond monetary value, such as a family heirloom or landed estate that a couple are going to live on once married.
Will the pre-nup be enforceable if we get divorced?
In recent years, the English Courts have been finding nuptial agreements increasingly determinative in deciding a financial settlement within divorce proceedings. While these agreements are not legally binding – if the Court is asked to rule on the outcome, nuptial agreements are likely to be upheld by the English Courts if they are drawn up properly and meet the required safeguards. This is due to the landmark case in 2010 of Radmacher v Granatino, which saw the Supreme Court make clear for the first time that a nuptial agreement will be upheld unless one person can show why it should not be. The Supreme Court said that:
“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 the agreement.”
The Court will usually come away from the terms only if they are very unfair or unworkable. Many judges take the view that if there was an agreement and one party acted in a particular way because they thought there was an agreement then that agreement should hold, if possible.
Couples should expect to be held to the terms of their nuptial agreement if they meet four key requirements:
- Its terms must be fair (viewed against the circumstances at the time of divorce).
- It must have been entered into without duress – signed at least 28 days before marriage.
- Both parties must have fully understood the terms, with both having obtained independent legal advice (or had the opportunity to do so).
- Full financial disclosure must have been provided.
Where a couple move to England having signed a nuptial agreement in another country, they ought to take advice about whether that agreement would be recognised in England and, if not, enter into a fresh agreement here which respects the principles in this jurisdiction.
In the same vein that a commercial lease will carry a standard rent review clause to take into account fluctuating market rates, it is important to keep nuptial agreements under review to take into account the unexpected windfalls and losses of a business or any substantial change in personal circumstances.
What if I have already married?
It is possible to have a “post-nup” at any time after you marry. The circumstances in which a post-nup may be entered into include:
- If there has not been time to put in place a pre-nup before the wedding.
- Where there has been a considerable change in circumstances since a pre-nup was entered into which may make its terms unfair (e.g. where one spouse falls seriously ill).
- There has not been a pre-nup put in place but then one party comes into unexpected wealth, which they wish to protect if there is a divorce or to preserve to leave for children.
- There are difficulties in the marriage; although no conclusion has been reached about whether to divorce.
- A conclusion has been reached that there will be a divorce, but for tax or other reasons the couple wish to remain married and leave their asset structure unchanged for a while.
Choosing to take out a nuptial agreement does not need to be costly in both time and money. With the right guidance, it can serve as an all-important sense of financial security for all parties involved.