pre-nuptial agreement

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Wedding Season: Do I Need a Pre-Nuptial Agreement?
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Wedding Season: Do I Need a Pre-Nuptial Agreement?

Published on
Emma Alfieri
Emma Alfieri
Legal Director
Greene & Greene Solicitors

It’s that time of year when the wedding season is in full swing. Whilst many brides and grooms do, understandably, focus on the main event itself being the big day, an ever-increasing number of couples are also considering the sensible question of whether they need a pre-nuptial agreement.

Whilst it may seem unromantic, or even pessimistic to enter into a pre-nuptial agreement, couples are frequently becoming more aware of the effect their nuptials could have on their financial future.

A pre-nuptial agreement is a Contract entered into between two parties before they marry.  It records the ownership of assets, and details what will happen to those assets should be the marriage break down.

In the past, pre-nuptial agreements were considered to be reserved for exclusive use of wealthy individuals and celebrities. However, they are becoming more commonplace, and some would say they are a sensible way of starting out in marriage with a shared intention of trust and openness. In fact, the Marriage Foundation conducted a survey in the Summer of August 2021 which found that one in five couples who married since 2000 had some form of pre-nuptial agreement in place.

The law in relation to married couples is different to couples who cohabit.  Cohabitants who separate simply retain their own separate property. Once married, assets you formerly owned before marriage may, in certain circumstances, become what is known as a “matrimonial asset”.  This means that if the marriage ends, those assets could be within the “matrimonial pot” and shared.  A pre-nuptial agreement allows for each party to ‘ring-fence’ certain assets to protect them from this scenario. This is often especially significant if either of the parties has children from a previous relationship.

Pre-nuptial agreements are considered by the Court as one of the circumstances of the case in the event of later divorce and the Court will decide what weight to attach to the Agreement. In doing so the court would look at the circumstances in which it was made.  There are certain criteria that must be met to ensure that a pre-nuptial agreement can have the best possible chance of being upheld, and therefore it is important to seek specialist legal advice on the subject.

It is also possible to enter into a pre-nuptial agreement after marriage, and in this scenario the name of the agreement is a “post-nuptial agreement”. A post-nuptial agreement will be considered by the court in the same way as a pre-nuptial agreement provided that it meets the same criteria.

This article is only intended to be a summary and not specific legal advice.

Read more articles by Emma Alfieri.

About Emma Alfieri

Emma Alfieri is a Legal Director at Suffolk firm Greene & Greene Solicitors.

Emma advises on all aspects of family law, including divorce and associated financial matters, disputes between cohabitants and child related disputes.

A member of Resolution, Emma is committed to resolving disputes as positively and agreeably as possible whilst also being motivated to obtain the best possible outcome for her clients.

Since 2012 Emma has been consistently recommended by the Legal 500 on an annual basis and in the most recent 2024 edition Emma is ranked as a “rising star”.

As an advocate of fault free divorce, Emma lobbied at Parliament with other members of Resolution in 2016 to bring about the recent changes to divorce law.

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Pre-Nuptial-Agreement-Enquiries
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Increase in Blended Families Leads to Rise in Pre-Nuptial Agreement Enquiries

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Kate Booth
Kate Booth
Solicitor, Head of Family & Matrimonial
Brindley, Twist, Tafft & James Solicitors (BTTJ)

More people planning their second, third or fourth wedding are entering into pre-nuptial agreements with their future spouse.

Step-families or blended families are the one of the fastest growing types of families in the UK making up about a third of all UK households.

Older people who might previously have had a bad experience and are looking to re-marry are among those most commonly seeking a pre-nup and over recent years the importance of pre-nups has grown.

Historically they were not binding, but now they will hold sway in court when it can be shown that the agreement is fair to both parties. Both need to have had ample opportunity to seek independent legal advice, the agreement needs to be signed by both parties well in advance of the marriage and both parties must have given full disclosure about their personal finances before the marriage takes place.

With these safeguards, the court is likely to recognise that the pre-nuptial agreement was entered into together and in that case, it can be binding.

Where it can get complicated is when circumstances change – for example if children come along. In cases such as these it is important to review and update any initial agreement, so it remains relevant to the present-day family situation.

More than just factoring in financial situations a pre-nup offers the opportunity to look at the whole picture, taking all assets into account, ranging from family businesses to pets.

There may be someone who has their own business or is a joint owner of a family business. In this instance pre-nups are a useful tool to avoid a former spouse from staking a claim.

For the full range of legal services available from Brindley Twist Tafft and James log on to www.bttj.com

About Kate

Kate deals with private family law cases including divorce and related financial matters, children, injunction and cohabitation issues. She also advises clients in connection with pre-nuptial and cohabitation agreements.

For the full range of legal services available from Brindley Twist Tafft and James log on to www.bttj.com

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Lawyer Urges Couples to Plan Pre-Nuptial Agreements Early as Wedding Season Nears
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Lawyer Urges Couples to Plan Pre-Nuptial Agreements Early as Wedding Season Nears

Published on
Joanne McDonald
Joanne McDonald
Associate
Furley Page

A pre-nuptial agreement or ‘pre-nup‘ is a bespoke legal document which sets out how parties agree their finances should be dealt with in the event of a future divorce, which often includes an element of preserving or ring-fencing assets.  

Pre-nuptial agreements are not currently binding in England and Wales, but if completed appropriately with specialist advice, they can be considered to hold significant weight when determining the outcome of financial matters between separating parties.   

Divorce is a fact of life for many people, and those marrying tend to be increasingly aware of the risk of divorce, however much they wish to avoid it.  For those who would like increased certainty as to what will happen to their assets in the future, particularly those who have acquired their own assets at the time of marriage, a pre-nuptial agreement is an attractive option.  

A key factor in determining whether a pre-nuptial agreement might be followed by a court is to ensure that the agreement is concluded in good time prior to the marriage. Taking steps to consult a lawyer five to six months in advance of the intended wedding date is important to give sufficient time to complete the process. 

Whilst the preservation or division of assets may be a concern for those entering a first-time marriage, demand for pre-nuptial agreements is more pronounced among those who are seeking to remarry. With remarriages, parties often have considerations beyond their future spouse, such as inheritances already received, or children from previous relationships. 

Pre-nuptial agreements can save parties considerable legal fees in the event of a future dispute and the cost of not entering one can be significant. Whilst imperfect, pre-nuptial agreements are the only tool currently available to parties to pre-emptively seek to ring-fence or protect assets from being shared upon divorce.

Click here for more articles by Furley Page Solicitors

About Joanne McDonald

Joanne joined the Family law team at Furley Page as an Associate in October 2021.  Joanne is a member of Resolution for Family Law and adheres to a Code of Practice promoting a constructive approach to the resolution of family matters.

Joanne has always had a passion for family law and demonstrates this through her commitment to clients. She understands that the breakdown of a relationship can be distressing and strives to ensure that clients feel supported through the process. As well as relationship breakdown, Joanne advises clients prior to marriage in respect of nuptial agreements and clients who are making the decision to cohabit with a partner and want to ensure clarity of future arrangements.

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Pre-Nuptial Agreements Part Three - Are pre-nuptial agreements legal?
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Pre-Nuptial Agreements Part Three – Are pre-nuptial agreements legal?

Published on
Nigel Winter
Nigel C Winter
Family Law Partner
DMH Stallard

But are they “legal”?

Thank you for getting to the third part of this blog. Having come this far, you’ve come to terms with: –

  1. Why the Pre-Nuptial Agreement may not be as cheap as you’d hoped (typical of reputation of Lawyers – but hopefully the reason behind this is justifiable)
  2. Now you’ve also grappled with the notion that a “simple” document can, on occasion, be a wholly inappropriate and unfair document. Typical – you simply wanted some good, simple news and now we’re asking the ultimate question: –
  3. Are they actually “legal”?

Well, no Lawyer expects to maintain your concentration thus far by answering “yes and no”.

Why the hell can’t a Lawyer answer a straightforward question?

It might be easier to simply advise that you do get one because if the procedure is correctly followed, the contents of the Pre-Nuptial Agreement will also be followed in the event of a later dispute.

For goodness sake, isn’t this the same as saying “yes they’re enforceable” – well, perhaps to everybody else but not Lawyers. But for the sake of absolute clarity, that’s the position.

Now let’s move on – what is this procedure you speak of?

Well, in short order, by drafting a Pre-Nuptial Agreement you’re putting the Judges out of work (kind of). You’re doing their job for them and they won’t take kindly to that, unless you do it properly. That’s how the judiciaries see it anyway. Therefore, you need to drop the same procedure and safeguard that they would adopt if the case ever came before them without a Pre-Nuptial Agreement – basically, you’d make the same or a very similar decision to the one that they would make.

I hate to generalise, but if I may so please don’t leave everything until the last minute.

Specifically, avoid the following situation: –

“Hey honey, I know you love me, and I certainly love you and it’s not all about money.”

Reply: –

“Of course it’s not.”

“And the wedding car’s outside”

Reply: –

“Great, let’s go!”

“Not so fast – just sign along the dotted line.”

Humour aside, an alarming number of people do leave this extremely sensitive conversation to the last minute. The dialogue above is not entirely unrealistic.

Whatever both parties think the other thinks, discussions about Pre-Nuptial Agreements will become increasingly sensitive the closer you get to your wedding day. It’s the happiest day of your life, your in laws are as awkward as hell, it’s costing a fortune, and the stress is mounting. This is not a great setting in which to discuss what happens if you actually split up.

I’ll spare you all the general rules about this – give it at least 6 months. There’s a “truckload” of work, disclosure and procedure to undergo and let’s be honest, you’ll only take it out on each other and/or your respective Lawyers if everything is rushed at the last minute.

Secondly, we’ll trot out the expression “full and frank disclosure” like a mantra. Not only must there be full and frank disclosure of your respective financial positions, there must be seen to have been full and frank disclosure. Thus, it must have taken place so that both parties know the extent of the compromise to which they are actually making.

Thirdly, that full and frank disclosure needs to be “exhibited” (posh word for attached) to the document that you sign. If the document comes to be tested before the Courts, the best one might predict is that “recollections” may differ as to what procedure was employed. Put it beyond doubt. Where it’s beyond doubt, the Lawyers can’t then fill the void.

The Courts also expect both parties to have independent legal advice. If the matter was before the Court, chances are that they would have that said advice. The Courts believe that you are owed this right, so that you really appreciate what you are doing and are not just overwrought by the emotion of the moment, such that your free will is sapped.

In short, it means all the idealistic thoughts about marriage, you’ve got your wits about you and if you haven’t, your Lawyer had their wits about them on your behalf.

The Lawyers will advise how the settlement in the Pre-Nuptial Agreement differs from what would happen in the event of a divorce before the Court.

Then, the Lawyers actually sign a certificate attached to the document that says I have been given independent legal advice and thus, the matter is beyond doubt.

At that stage, you have come as close as conceivable (for the purpose of an article) to ensuring that you have a good, solid Pre-Nuptial Agreement that comes as close as possible to being followed by the Courts in the event of a later dispute – which probably won’t occur because you’re both confident and happy in your relationship, bolstered by the fact that you have a Pre-Nuptial Agreement in any event.

Oh, and depending on how long you want your Pre-Nup to last for, it’s always worth putting in a review clause in the case of certain significant changes in your life’s circumstances. You’ll be glad to hear that’s not going to be the subject of a further article because if you got this far, it’s time we had a chat.

We look forward to hearing from you.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know there are on-line advice videos at:- DMH Stallard

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Pre-Nuptial Agreements UK - Part Two
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Pre-Nuptial Agreements UK – Part Two

Published on
Nigel Winter
Nigel C Winter
Family Partner
DMH Stallard

In the last article on the subject, I raised a query as to whether you want your Solicitor to be a professional or a “salesman”.

The reason for this is due to a huge misunderstanding about Pre-Nuptial Agreements which are quite understandably seen as a simple document.

They may be!

And they may be not!!

Why is whenever you go and see a Solicitor with a very simple and straightforward matter, they always complicate things and, predictably, you emerge with a far greater fee quote than you believed would be forthcoming from your online research.

The choice is of course yours – you are the client and the client is always right. But most clients do, on reflection, want the job done “properly”.

The example that I gave in the last article may be very extreme in that a simple Pre-Nuptial Agreement drafting to ensure that both parties kept what they brought into the marriage, was proven to be wholly unfair. How come? (see link to previous article)

Even when the parties enjoy good health and the extreme misfortune to which I referred did not arise, the blessing of children may.

What will be the impact if there’s a “main carer” who gives up a lucrative career. A graduate in medicine may be earning say £80,000 per year when they decide to look after both parties’ children. After 18 years, they will not be able to command a fraction of the salary that the “go to work” parent then commands, yet their contribution to the family would have been just as great if not greater. Will the receive maintenance?

What maintenance will the children receive in their own right?

Will they be privately educated?

Who will look after them in the foreseeable event of university?

Is that for undergraduate or postgraduate study?

There is a whole raft of questions that need to be answered and there is therefore a convenient link to these here – (link to questionnaire – provided by NCW).

Whatever you do, whoever you instruct, consider these questions – it may be that none of them are applicable to your situation. If that is the case, then you may be one of the lucky individuals who can legitimately have both a correctly and properly drafted tailored Pre-Nuptial Agreement for your circumstances at a reasonable cost. But we can’t pretend that these issues don’t exist.

You are the client; we owe it to you to ensure that you make an informed decision.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know there are on-line advice videos at:- DMH Stallard

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Pre-Nuptial Agreements – To have or not to have?
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Pre-Nuptial Agreements – To have or not to have?

Published on
Nigel Winter
Nigel C Winter
Family Partner
DMH Stallard

Pre-Nuptial Agreements Part One

Undoubtedly, the answer to that question is to have a Pre-Nuptial Agreement.

These are straightforward documents but are never, contrary to popular belief, merely a case of presenting your fiancé with a document and expecting them to sign it, thereby concluding the matter.

The first issue to consider is perhaps the cost.

Why is it so difficult to get a straight answer from a Lawyer?

Well, in the first instance we are drawing up a document that may never be used but if it is, it is at an uncertain point in the future when circumstances are currently unforeseeable and based upon the circumstances of today. Who can say what circumstances will prevail in 5, 10, 20- or 30-years’ time?

Usually, it’s seen as a simple requirement of most clients to ensure that each party keeps what they bring into the marriage. What could be fairer than that?

And by in large, the above is relatively easy to draft.

But your Lawyer (acting as your professional advisor rather than a “salesman”) has a duty to advise you of the shortcomings of this simple proposal. For example, consider the following: –

  1. Two people with their own wealth and their own children – no further children planned.
  2. Neither wishes to make a claim on the other but just live together into their dotage.
  3. They duly enter into a briefly drafted (and comparatively cheap) Pre-Nuptial Agreement.
  4. It goes in the proverbial “top drawer” and is forgotten about.
  5. One of them becomes critically ill and the other makes considerable sacrifices to look after them for 20 years, including using their own wealth and possibly even depleting it, giving up a lucrative career in the city, etc, etc.
  6. When they pass away, the other party who has cared for them for 2 decades, finds they have neither a house nor a home. And then their adult children miraculously reappear after having left the spouse to care for 2 decades and claim what they see as “their share”.

With the above in mind, it is not surprising that there are complex clauses to accommodate such eventualities.

They are not, however, necessarily cheap because they will need to be drafted by the Solicitor, approved by their client, the other party and critically the other parties’ Solicitor.

They will also endeavour to envisage a whole host of unforeseen ramifications that flow from those unfortunate but largely realistic possibilities.

When first seeing a Lawyer and expecting to have a Pre-Nuptial Agreement drafting for say £1,000, when the foregoing possibility is pointed out, the costs dramatically increases.

This in turn leads to an understandable degree of disappointment.

Ultimately, as I said at the outset, do you want your Solicitor to be a proper professional advisor or merely a “salesman”?

If the latter, then the foregoing will not be pointed out to you. And in the majority of cases, you may be “none the wiser”. But for the conscientious Solicitor who knows that 1 in 10 of these Pre-Nuptial Agreements will come to be enforced, there is only one way of doing the job and that is properly.

Equally, thoroughness is essential. Those Solicitors that are mere “salesmen” will tell you what you want to hear. They’ll give no forethought to the fact that in so many years’ time, you may be sat on the edge of your seat in Court, nervously asking a Judge to deliberate on whether the Pre-Nuptial Agreement should be followed or not. You might cast your mind back to that “cheap” Pre-Nuptial Agreement and that charming Solicitor/salesman who told you decades beforehand exactly what you wanted to hear. Would it that you could find him or her now!

Simply being told what we want to hear is not always the best policy.

Look out for Pre-Nuptial Agreements Part Two to be published tomorrow.

Click here for more articles by Nigel Winter

ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

Did you know there are on-line advice videos at:- DMH Stallard

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10 things to know before entering into a Pre-Nuptial Agreement
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Me, You and Us – Love Nuptially – 10 things to know before entering into a Pre-Nuptial Agreement

Published on
Malvina Peci
Malvina Peci Family Solicitor
GoodLaw Solicitors LLP

The concepts of we-ness and couple identity arise throughout philosophy, literature, poetry, and social science.

Genesis 2 describes how Adam and Eve will be “united and become one flesh.” Although that line is pre-eminently describing the physical union, the passage resonates deeply with so many because of the implication of a deeper bond.

Aristotle wrote, “love is composed of a single soul inhabiting two bodies.” This goes further than two becoming one. Aristotle was most likely inspired to write that based on the ideas of his mentor, Plato, who wrote that humans were originally made with two heads, two faces, and four arms and legs. Setting aside other complexities in Plato’s view, he writes that this initial version of humans was a threat to the gods, so Zeus had them split in two. The now half-not-whole beings were consigned to spend their days searching for their other half.

Both of these ancient thoughts hover around the nature of individuality and oneness, but the nuances and traditions around them are different in how they relate to views of mating, love, and marriage.

In one view, two identities were intentionally created with the idea that they would seek to be one in core aspects of life. In the other, one entity was split into two for the express purpose of inflicting a weakness. There are doubtless many variations of these ideas in every culture that ever existed.

As these and other themes suggest, there is a fundamental human drive to seek and be in a relationship that has this quality of “us.” To join with another. Beyond this central fact, there are healthier and less healthy views of what “becoming us” can be like.

We have also see an emergence (or re-emergence) of a desire for a relationship of sorts described in a famous line from the movie Jerry Maguire:  “You complete me.” That’s not just you and me developing a sense of us, that third identity, of it’s “I am not whole without you.”

All these ideas touch on the concept of soulmates. There are versions of this idea that are appealing, but I believe it has two problems. First, it implies that there is one perfect match out there for each person. Second, it supports the illusion that finding that person would make love and marriage blissful. But that search becomes formidable, and there are negative effects of holding expectations that your soulmate will complete you in only the most wonderful way.

Time-stretched and stressed over wedding preparations, couples tend to routinely sign documents without batting an eyelash. These include purchasing a property together, paying hefty deposits to secure their dream wedding venues, or accepting the terms and conditions in record speed to set up a Netflix account together. While these actions may seem insignificant, they play an important role. Taking these actions seriously ensures that a relationship thrives, as each decision made together helps two people reach a common understanding and expectation on issues.

If couples have a common understanding on what to expect from each other during a marriage, then why wouldn’t they also want to have a common understanding if they mutually decide to part ways? A pre-nuptial agreement is like an insurance policy. You might feel inclined to take a risk and do without one, but you will be glad to have one in place in the event matters take an unexpected turn.

Simply put, just like a medical insurance policy, you would rather not have to rely on it but should the unwelcome happen, you would be glad for the coverage and protection.

Pre-nuptial agreements are not just for the ultra-rich, or for individuals from wealthy families. They are perfect for couples who appreciate clarity. These are couples that have a relationship based on mutual respect and understanding, and that wish to avoid unnecessary acrimony, expensive legal bills and long-drawn court proceedings. A pre-nuptial agreement is not just about settling the finances, it can also set out how you and your partner intend to part ways amicably in the event of a divorce and parties’ understanding in the period leading up to divorce.

If this sounds like you and your partner, below are 10 things to know before entering into a pre-nuptial agreement;

1) Where you choose to sign matters

At first glance, this might seem like an insignificant issue. However, any experienced family law specialist will and should of course flag this out to be a key area of concern.

As a starting point, you may wish to consider which country your partner and yourself are likely to reside in during the marriage as well as the nationality of yourself and your partner. Seeking advice from a family lawyer with appropriate expertise is key. Choosing the country that governs your agreement has a significant impact on its enforceability. What good is it to have an iron-clad pre-nuptial agreement, only for you to find out much later on that you cannot enforce it in the country you live in?

This is why it is important to have a pre-nuptial agreement drafted by family lawyers with specialist knowledge.

2) Third parties cannot be bound by a Pre-Nuptial Agreement

As a pre-nuptial agreement is only between you and your partner, you cannot bind other third parties (such as parents, siblings, etc.) in your agreement. For example, you cannot bind your partner’s parents to do anything in a pre-nuptial agreement. If there is a need for this, you should flag this out to the lawyer advising you in respect of the pre-nuptial agreement to see if they can offer you with any other solutions on how you can best protect your rights vis-à-vis a third party.

3) A Pre-Nuptial Agreement is not the be all and end all

A common misconception is that you may not change any terms once a pre-nuptial agreement is signed. While that is true in relation to that specific document, it does not prevent you and your partner from executing any further documents to deal with new issues that arise during your marriage, or if you wish to update or vary any of the agreed terms (by mutual consent) that were mentioned in your pre-nuptial agreement. This is known as a post-nuptial agreement. It is perfectly normal and recommended for a couple to enter into an agreement post-marriage if it is necessary.

4) Arrangements relating to children should be refrained

If you intend to have children with your partner, you may be keen to come to an agreement on how you will care for your children upon a possible divorce. However, this is generally unadvisable as such agreements will rarely be upheld by a Court upon divorce.

This is because the Court has to determine if the arrangements are in a child’s best interests, and that will be best determined at the time of the divorce, and not at the time when a pre-nuptial agreement is signed where there are no children of the marriage yet. It will be hard for you and your partner to truly anticipate where your lives may lead, and more importantly, what may be best for your child in that situation.

5) Independent legal advice for both parties is highly recommended

Both you and your partner will need to obtain separate and independent legal advice on the pre-nuptial agreement. This is essential to ensure that a pre-nuptial agreement is enforceable, and one party does not come back to say that they were unaware of what they were signing at the time. It is important for both you and your partner to willingly enter into the agreement with your eyes wide open and to understand what you are agreeing to.

Having independent legal advice and representation also ensures that you and your partner are able to navigate the process and set out your joint understanding on how the two of you wish to settle your affairs in the event of a divorce.

6) Disclosure of all assets and financial resources is paramount

Couples will need to make full and frank disclosure of all assets and financial resources they presently have, or assets which they believe they will acquire. This would include any inheritances or gifts you believe you will receive in your lifetime. This is important as it could render the entire pre-nuptial agreement unenforceable if it is proven that one party did not make full and frank disclosure of their assets during the time it was signed.

Disclosure is also important to ensure that you and your partner are fully aware of what you are entering into and the understanding on how these assets and financial resources would be dealt with in the event of a divorce.

7) Understand what assets you own

So you want to make full and frank disclosure, but what assets do you make disclosure of? It is crucial to be aware of what assets you have, and what can or should be included in a pre-nuptial agreement. Does a joint bank account you have with your parent constitute as an asset you own? What about distributions from a trust fund for which you receive occasional pay-outs? Should this be included in a pre-nuptial agreement? This is where a family law specialist is crucial in ensuring a holistic and enforceable pre-nuptial agreement is drafted that is tailored to your situation.

8) The difference between assets acquired before and during a marriage

You should have a clear understanding of what assets you have prior to being married, and what assets you think you may acquire during your marriage. You should also know the repercussions of the timing of owning such assets.

However, if you and your partner reach a mutual understanding regarding what assets should or should not be split upon divorce, this would be reflected clearly in your pre-nuptial agreement. This is recommended as it encourages clarity, and ensures that neither you nor your partner waste time and legal costs arguing about dividing such assets upon divorce.

9) Have a conversation with your partner on the need for a Pre-nuptial Agreement

A pre-nuptial agreement like any other agreement is an agreement between parties. Both parties must willingly sign a pre-nuptial agreement, and you cannot force your partner to do so if they do not want to. For obvious reasons, it is not a good start to a marriage to force someone to do something they are not comfortable with. More importantly, this may lead to the pre-nuptial agreement being void.

Broaching the topic with your partner may be uncomfortable. Think about it as planning for the future and as a comprehensive insurance. You rather not have to rely on it but should the unwelcome happen, both of you would have been fully prepared and like any good insurance policy, fully covered.

10) You must be clear about your intentions

Last but not least, it is strongly encouraged to be clear with your partner (and the lawyers involved) about what your intentions are with the marriage. Specifically, how you wish to organise your finances and assets. Things do change in a marriage. Partners may take on different roles from the one they envisioned prior to marriage, or you may be hit hard with a financial setback that requires both of you to recalibrate quickly.

Whatever the case may be, something that can be cultivated and that should remain a constant between you and your partner is the ability to have an open and honest dialogue about your thoughts and wishes. Doing so prior to having a pre-nuptial agreement signed is a good first step.

It can only benefit you to be clear about your wishes and expectations. As such, it is strongly advised to be clear about your intentions before entering into a pre-nuptial agreement, as to ensure that such intentions are reflected clearly by your lawyer in the agreement.

Click here for more articles by Malvina

About Malvina Peci

 Malvina Peci is a Family Solicitor at GoodLaw Solicitors LLP, with offices across East Sussex and Surrey.

Having completed her training at a specialist family law firm, Malvina is experienced in advising clients on a full range of family law matters such as complex financial disputes (with particular emphasis of high net worth matters), divorce, separation issues, pre and post nuptial agreements and private children issues.

Malvina’s main aim is to work collaboratively with clients and she makes every effort to settle disputes outside of court. She strives to achieve the best possible outcome to enable her client’s to be secure and successful for the future.

Malvina is also a member of Resolution and Women in Family Law, and is a committee member of the Sussex Law Society.

www.goodlawsolicitors.co.uk/goodlaw-legal-team/malvina-peci/

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Pre-nuptial vs. Post-nuptial Agreements: Which One Do You Need?
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Pre-nuptial vs. Post-nuptial Agreements: Which One Do You Need?

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Kaylee Justham
Kaylee Justham
Solicitor
Rainer Hughes

When approaching a milestone event such as a marriage or civil partnership, it is always a good time to reassess your financial position and put plans in place to protect yourself. This is particularly important if there is an imbalance in wealth between the two partners, such as one partner having business assets or a large inheritance. It is natural for that partner to wish to preserve or retain the wealth they have already accumulated, in the event of a future divorce or dissolution, particularly where there are children involved whose future needs are required to be considered. On the other hand, it is also sensible to plan ahead and determine how financial settlements should be arranged, in the event of a relationship breakdown, and this peace of mind is what a pre-nuptial and post-nuptial agreement provides. 

Pre-nuptial and post-nuptial agreements have previously been the domain of high-profile people and couples involved in a high net worth divorce or partnership dissolution, but they have become increasingly popular as people take sensible steps to avoid costly litigation in the event of a relationship breakdown, and at an already stressful time. 

What is a pre-nuptial agreement?

A pre-nuptial agreement is a formal agreement that a couple enter into prior to a marriage or a civil partnership. The agreement sets out how assets and financial arrangements will be divided in the event of the relationship ending, and therefore predetermines a financial settlement. This removes stress, provides clarity and avoids disputes which could result in costly court proceedings. A partner can use a pre-nuptial agreement to protect assets they have already accumulated from future claims, which UK laws might otherwise dictate are shared with the other partner. 

What is a post-nuptial agreement?

A post-nuptial agreement is very similar to a pre-nuptial agreement in terms of its contents and purpose, but this is an agreement entered into by two partners who are already married, or who are already in a civil partnership. A post-nuptial agreement also defines how assets and financial arrangements will be divided in the event of a relationship ending.  

The key differences between pre-nuptial and post-nuptial agreements

It is common for people to come to a decision that they wish to protect their own financial assets, and to provide clarity on how this is done, but this decision can be made at different times. Of course, these arrangements can be made before or after a wedding or civil partnership ceremony and therefore can be a pre- or post-nuptial agreement accordingly. However, there are other important differences in each arrangement which could suit certain people at certain times. 

  • Separation before divorce – A post-nuptial agreement can be useful in a scenario where a couple wish to separate, but have not yet decided that divorce or dissolution is the right conclusion. This could be due to various circumstances, including financial circumstances. In this event, a post-nuptial agreement acts as a holding position to define the current agreement, until such a time that a divorce or dissolution is decided upon and agreed to be the next course of action.  
  • Wealth accumulated during a marriage/civil partnership – It is also common for one partner to come into significant wealth during a marriage or civil partnership. This could be an inheritance, or through the sale of a business or a property owned prior to the marriage or civil partnership, for example. In this case, wealth protection is very important, and a post-nuptial agreement can clarify how this new wealth should be divided in the future.  
  • Condition – Although it is not considered a particularly romantic gesture and is considered by some to be putting a negative slant on an impending marriage or civil partnership, one partner may insist on a pre-nuptial agreement being put in place prior to the relationship becoming formal, and hence this becomes a condition that may even prevent the marriage or civil partnership going ahead. At the same time, it should be stressed that both partners have to enter into a pre- or post-nuptial agreement willingly and without pressure or duress, for it to be enforceable. 

The key difference is that a post-nuptial agreement can protect a partner in the event that circumstances change during a marriage or civil partnership, and these circumstances weren’t known prior to the marriage or civil partnership.  

What should pre- nuptial and post-nuptial agreements contain?

Common inclusions in a pre- or post-nuptial agreement are:

  • Property – Whether marital or non-marital
  • Bank accounts – Protecting individual income and savings and dividing joint accounts
  • Debts – Again, whether marital or non-marital
  • Maintenance – Arrangements for funding childcare 
  • Pensions – How these will be divided
  • Inheritance – Whether to keep separate and/or pass down to children
  • Valuable property – How items such as jewellery, artwork or valuable furniture is divided
  • Business interests – Dividing business assets and restricting sale or transfer if applicable

A pre- or post-nuptial agreement wouldn’t normally predetermine child arrangements, as these can change over time. It also wouldn’t include personal issues, such as clauses relating to lifestyle choices, household responsibilities or social media usage. 

What considerations should you make when preparing a pre- or post-nuptial agreement? 

A pre- or post-nuptial agreement is not yet a legally binding agreement in the UK, but they are usually given significant weighting by the courts in the event that certain conditions are met. These can include:

  • A pre-nuptial agreement should be entered into at least 28 days prior to a marriage or civil partnership, to avoid accusations that undue pressure or coercion was involved.
  • There should be full financial disclosure from both parties. 
  • Both partners were provided with independent legal and financial advice prior to formalising the agreement. 
  • The agreement is fair and reasonable for both parties and also prioritises the needs of any children involved in the relationship. 

Although a pre- or post-nuptial agreement requires both partners to look into the future and assess the likelihood of certain things happening, and many people might not like to do that, such agreements can provide an element of trust and peace of mind and prevents the possibility of disputes in the future. Ultimately, this can help to make the divorce, separation and dissolution process amicable and much less emotional.

About Kaylee Justham

Kaylee Justham joined Rainer Hughes Solicitors August 2023 as a Solicitor in the Family Department. Kaylee has over 10 years’ experience working in Family Law, starting off as a paralegal and Trainee Solicitor in which she qualified as a Solicitor in May 2018. Kaylee provides a wide range of services to her clients to include all aspects of family matters to include; matrimonial matters, cohabitation disputes and private children matters. Kaylee also has experience with drafting Wills, Legal Power of Attorneys and Deeds of Trusts.

Kaylee regularly represents her clients in Court and prides herself on her friendly, approachable, direct and forward-thinking manner. Kaylee understands the needs of her clients and strives to act in their best interests in helping them to achieve the best possible results.

Kaylee is considered an extremely safe pair of hands and is dedicated to listening to her clients and aiming to make the process as stress free as possible.

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Understanding Prenuptial Agreements: A Comprehensive Guide for Couples
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Understanding Prenuptial Agreements: A Comprehensive Guide for Couples

Published on
Elspeth Kinder
Elspeth Kinder
Partner
JMW Solicitors LLP

Prenuptial agreements, often referred to as ‘prenups’, are legal documents that a couple signs before they get married or enter into a civil partnership. These agreements set out the ownership of the couple’s income, property and assets, and how these will be divided in the event of a divorce or dissolution.

There are several benefits to making a prenuptial agreement, as JMW explores in the following guide. We also explain what you should consider when deciding whether to proceed with a prenuptial agreement, and what the process of creating one involves.

Why Consider a Prenuptial Agreement?

Prenuptial agreements can, amongst other things, help to protect an individual’s property, set out out which assets are considered ‘non-matromonial’ (meaning they have been acquired prior to marriage), and dictate how inheritance should be treated if it is received during the marriage.

In the event of a divorce, a prenuptial agreement can determine how the financially-weaker party’s need for housing and income will be met,  reduce conflict over assets, and help to make a potentially painful and complicated process more straightforward.

Common Misconceptions About Prenuptial Agreements

Contrary to popular belief, prenuptial agreements are not just for wealthy couples. Individuals of any income bracket may find them beneficial, especially in protecting personal or business assets. Entering a prenuptial agreement does not necessarily suggest an expectation of divorce – it can be viewed as a step towards financial clarity and protection.

Another misconception is that prenuptial agreements can dictate the terms of a financial settlement during a divorce. In fact, the Family Court retains the final authority and it will reject any terms of a prenup that it considers to be unfair or unjust.

The Legalities of Prenuptial Agreements in the UK

Prenuptial agreements are not legally binding in England and Wales, however, the family court can attach significant weight to prenups, and it is for the party who seeks to depart from the terms of the agreement to persuade the court why the terms should not be upheld.

A properly drafted prenuptial agreement is likely to be upheld by the court depending on the circumstances surrounding it.

Essential Components of a Prenuptial Agreement

A comprehensive prenuptial agreement generally includes:

  • A breakdown of each party’s assets and liabilities.
  • Details as to which assets are non-matrimonial.
  • Information as to how the parties intend for the assets to be divided upon separation.
  • Details as to what property will be made available for each party.
  • Confirmation as to whether either party will receive maintenance payments and if so for how much and for how long.

A good pre-nuptial agreement will also contain a review clause that may be triggered by a number of events. For example, a review of the pre-nuptial agreement may take place once the parties have been married for 10 years or if the parties have a child/children.

Financial provisions for children may also be covered within the prenuptial agreement. However, the contact arrangements for the children are best reserved for discussion between the parties when the reality of the separation is known and a decision can be made that is in the best interests of the child.

How to Approach a Prenuptial Agreement

Initiating a conversation about a prenuptial agreement can be challenging. It requires open and honest communication about finances, which can sometimes be a sensitive subject. A strong prenuptial agreement will reflect a balance of interests, ensuring fairness for both parties. As with any legal process, an expert divorce solicitor will be able to help you understand the process and avoid any mistakes that could prove costly or time-consuming.

The Process of Creating a Prenuptial Agreement

The first step towards creating a prenuptial agreement involves a mutual discussion between the couple about their finances. Following this, solicitors for each party can provide independent advice and draft the agreement. Once the draft is prepared, it can be reviewed and revised. When both parties agree to the terms, they sign the prenuptial agreement.

In deciding whether a prenuptial agreement is valid and should be upheld, the Family Court will assess various aspects of it, including:

  • Whether each party had adequate independent legal advice before entering into the agreement.
  • Whether both parties’ understand the implications of the agreement.
  • Whether either party was pressured into making the agreement and whether there was sufficient time to consider the agreement before the wedding.
  • Whether the parties exchanged financial disclosure and whether the parties were open and honest about their respective resources.
  • Each party’s needs and whether the agreement meets them
  • The needs of any children of the family.

If the court finds issues with any of the above points, the agreement may be rejected and the court may make a decision as to how the parties assets are divided.

What About Postnuptial Agreements?

Postnuptial agreements are similar to prenuptial agreements, except they are entered into after the marriage or civil partnership has taken place. Couples may opt for a postnuptial agreement for a variety of reasons, such as changes in the couple’s financial situation after marriage, such as receiving an inheritance, starting a business, or substantial career advancement. Alternatively, couples may choose to enter into a postnuptial agreement as part of an attempt at reconciliation following marital difficulties.

The process for creating a postnuptial agreement is similar to that of a prenuptial agreement. Both types of agreements require full disclosure of assets, fairness to both parties, and independent legal advice to be considered valid.

Keep Your Finances and Property Secured

Prenuptial agreements offer couples a mechanism for financial protection and certainty. Though they may seem unromantic, their potential benefits are substantial. It is important for couples to have an open dialogue about their finances, and when handled properly, a prenuptial agreement can provide peace of mind and contribute towards a healthy, secure relationship.

About Elspeth Kinder

Elspeth joined JMW Solicitors in May 2018 as a Partner and Joint Head of the Family Team. Elspeth is recognised as a leader in her field by the legal directories Legal 500 and Chambers and Partners for her experience in all aspects of the law relating to personal relationships:

  • Separation and divorce;
  • Financial settlement following the breakdown of a relationship;
  • Cohabitation;
  • Arrangements for children following relationship breakdown including with regard to where a child should live and how much time they should spend with each parent as well as specific issues such as place of education and funding of school fees, choice of name and welfare of a child; and
  • Wealth protection by way of pre-nuptial agreements, post-nuptial agreements and cohabitation agreements.

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Prenuptial agreements - not just for the super wealthy
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Prenuptial agreements – not just for the super wealthy

Published on
Sarah Norman-Scott
Sarah Norman-Scott
Associate Solicitor
Family Law
Osborne Law

It has been announced that Rupert Murdoch is divorcing Jerry Hall.

This is the second high-profile divorce this year after Sergey Brin, Google co-founder, filed for divorce from Nicole Shanahan. This is Brin’s second marriage and Murdoch’s fourth.

Given Brin and Murdoch’s respective substantial net worth, and the fact they have both been married before and married at a later stage of their lives, it is highly likely both will have entered into a prenup.

Both divorces will be dealt with in American states, where the law differs from the laws in England and Wales.

However, even with a prenup, the agreement reached must be fair given the parties’ circumstances at the time of the divorce. Any award made must meet the parties’ needs.

Murdoch and Hall don’t have any children but Brin and Shanahan did and so the prenuptial agreement must also meet the child’s needs. Both husbands have significantly more wealth than the wives and so both wives stand to receive a significant award but unfortunately, the details of both are likely to be kept private, Shanahan’s divorce settlement has the potential to be the largest award ever made.

Prenuptial agreements can limit one party’s exposure in a divorce and have the ability to ring-fence certain assets, but the provision made in the agreement must still be considered fair at the time of the divorce.

There are rumours that the agreement ensured Murdoch’s business operations were left untouched, but he would have to offset that against other assets, such as giving Hall a large share of the jointly owned property.

The prenup, in both cases, will probably limit the wife’s claims to less than 50% but they will still receive a substantial award in order to meet their respective needs. Murdoch’s third wife, Wendi Deng, reportedly received cash and property pursuant to her prenuptial agreement with Murdoch.

When entering into a prenuptial agreement in England and Wales, both parties must ensure that the provision made meets both parties’ current needs and any anticipated needs (for instance if they intend to have children).

Prenuptial agreements should be reviewed regularly to ensure they remain fair and it is advised they are reviewed after any significant life event (such as the birth of a child, bankruptcy, any serious condition that would prevent one party from working, etc) and every 5-10 years.

Whilst both parties may have entered into the prenuptial agreement with eyes wide open and with the benefit of extensive legal advice, if the agreement is not fair at the time of the divorce, it can be contested.

The Court retains discretion and upon reviewing the agreement, if the Judge does not think the provision is fair at the time, the agreement will not be upheld. This is why it is crucial that it is reviewed regularly and with the benefit of independent legal advice.

Click here for more articles from Osbornes Law

About Sarah Norman-Scott​​

Sarah specialises in all aspects of family law. She has a broad caseload consisting of divorce, financial matters for married and unmarried couples (under the Trusts of Land and Appointment of Trustees Act 1996) and private law children matters (domestic and international) including where one parent wishes to relocate with the child/ren.

Sarah is also experienced in dealing with financial claims on behalf of the children of unmarried parents under Schedule 1 of the Children Act and drafting Pre-nuptial and Post-nuptial agreements.

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Christmas Proposal

Are you Thinking of a Christmas Proposal? What is a Prenuptial Agreement?

Published on
Daniel Rushton
Head of Family Law
Grindeys Solicitors

Maybe you should also be thinking about a pre-nup! This agreement, formally known as a pre-nuptial agreement or pre-civil agreement, has been popular for years with the rich and famous.

However, there is now a growing realisation that they can also be useful to couples with more modest means who are keen to protect their interests before marrying or entering a civil partnership.

In this article we outline the key points to consider if you are thinking about suggesting a pre-nup to your partner, or, if as a parent, you believe it is something your son or daughter should consider.

Who needs one?

The most common reason for a pre-nup is that one partner may be entering into the marriage or civil partnership significantly more wealthy than the other and they, and their family, may be keen to protect their existing financial position.

This is particularly important where personal wealth is tied into a family business.

Couples who have been married before may have assets from their previous relationship that they might wish to preserve, such as the sale proceeds from the former matrimonial home, for the benefit of them or their children.

Both scenarios may benefit from a pre-nup. Before deciding whether a pre-nup is right for you, you need to think carefully about what it is you are seeking to protect.

Is there a good way to raise the subject of a pre-nup?

We have to agree that raising the issue of a pre-nup isn’t always easy. Let’s face it it’s not the most romantic proposition.

There is no legal right to insist that your partner agrees to enter a pre-nup so maybe honesty is the best policy; nobody knows what the future holds and while everyone hopes that their relationship will stand the test of time, there is never any guarantee.

Talk to a family law solicitor. They will be able to advise you about ways to approach the subject with your partner.

Your solicitor may advise you to raise the subject as part of a general discussion about the implications your marriage or civil partnership will have on your financial arrangements.

This could involve discussing the need to update your wills and to think about the ownership of the property you will live in. If your partner can see the need to think about the financial consequences of your relationship then it should not come as such a big surprise if, as part of a general discussion, you raise the possibility of a pre-nup.

The same applies if you are a parent and wish to raise the subject with your child – if you can persuade them of the need to consider the financial impact their marriage or civil partnership will have on the family more widely you stand a better chance of being able to persuade them to consider how a pre-nup might help.

How do we agree the terms of the pre-nup?

One option is to meet with a mediator or collaborative lawyer who can assist you in negotiating the terms.

Another way is to sit down with your partner, or your child and their partner, and agree things between you; however, this can be difficult, particularly if you are the wealthier party.

In either case, you will need legal advice and help with recording the terms in a formal written agreement.

Is a pre-nup legally binding?

The courts in England and Wales will take the terms of a pre-nup into account when deciding how assets should be divided-up following divorce or dissolution of a civil partnership. However, this is subject to certain criteria being met:

    • The pre-nup must be a valid contract entered into freely by both partners – if there is evidence that one partner was pressurised into making the pre-nup, it will be void.
    • The agreed terms must be recorded in a formal document, known as a ‘deed,’ and must contain a statement signed by both partners confirming they understand the agreement is a ‘qualifying nuptial agreement’ which will prevent the court deciding financial arrangements if they divorce or dissolve their civil partnership, unless the agreement they have reached leaves either of them without provision for their financial needs.
    • The agreement must have been made at least 28 days before the wedding or civil partnership took place.
    • At the time the agreement was made, both partners must have received full details about their partner’s financial situation.
    • Both partners must have received legal advice at the time the agreement was made.

    Even if the agreement meets the above criteria, before relying on its terms the court will also consider:

    • the length of the marriage or civil partnership;
    • whether there are any dependent children of the marriage or civil partnership; and
    • the current financial situation of both partners.

Pre-nups made by couples who choose to divorce or dissolve their civil partnership after only a few years together, or at a time when there are no dependent children, are more likely to be upheld by the court than those made by couples who have gone on to have a long marriage or civil partnership or who do have dependent children.

Pre-nups can be a very useful way of protecting your financial position prior to marrying or entering a civil partnership, but you need to think about the terms carefully and take legal advice to ensure that you comply with all the necessary requirements.

They are likely to be particularly persuasive in short marriages and those where there are no dependent children.

Whatever your decision – Good Luck!

If you are thinking of popping the question this Christmas then may we wish you the best of luck and a long and prosperous future together.

More articles by Daniel Rushton

ABOUT DANIEL RUSHTON

Daniel has over 20 years’ experience as a specialist family law solicitor. He is Head of the Family Law team at Grindeys Solicitors based in Stoke on Trent.

Daniel has a particular interest and experience in dealing with business owners, company directors and members of the medical profession in matrimonial situations. For this type of work a solicitor who understands your business accounts and business structure is vital to obtain the best financial settlement possible.

Recent cases include one involving an international business and extremely valuable assets and pensions, as well as property abroad.

He has acted for numerous doctors and other medical professionals, council workers, police officers and serving members of the armed services. In twenty-three years, Daniel has dealt with all walks of life and will adopt a professional yet caring approach to your situation.

Email: daniel.rushton@grindeys.com

 

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Cohabitation Agreement: Why and How to Protect yourself in all Eventualities

Published on
Vanessa Fox Partner and Head of Family Law, hlw Keeble Hawson
Vanessa Fox
Partner and Head of Family Law,
hlw Keeble Hawson

More people than ever before are choosing to live together without ‘tying the knot’ – as reinforced by research from the ESRC Centre for Population Change.

Yet, with Relate reporting that separation among cohabiting couples is running neck-and-neck with the divorce rate, it is vital that they know the legal ramifications of their status and are not left disadvantaged by it.

Despite the government’s attempts at promoting marriage and civil partnerships, it is estimated that around six million people in the UK now simply live together – with the numbers set to rise, according to reports from the Centre of Social Justice.

However, these couples have no legal status and, contrary to popular belief, ‘common law marriage’ is not a legal entity.

Whereas there are clear rules in England and Wales regulating the finances of divorcing couples – and who gets what when a spouse or civil partner dies – there is no provision for live-in partners.

There are no specific laws to protect separating cohabitees and they usually have no automatic entitlement to anything upon the death of their partner, no matter how long they have lived together.

The death or separation of a cohabitee can therefore lead to some knotty legal complications that the law is poorly equipped to address at present. This can result in expensive litigation to resolve them, often based on complex property and trust rules – which can in turn result in outcomes that neither party necessarily intended.

There is, however, a simple, relatively inexpensive solution to all of this, albeit a little known one.

For while increasing numbers of couples are entering into pre-nuptial agreements before marrying, to plan in the best of times for what should happen in the worst of times, many cohabiting couples are unaware that they can do something similar.

Having a cohabitation agreement in place could avoid financial and emotional trauma later on.

This can give both partners peace of mind by making clear in the case of a split or death:

  • Who will own the home you live in or intend to live in – and, if jointly, the shares
  • Who will pay the bills, including any improvements or renovations to the home
  • What will happen to the property if the relationship ends or should one of you die
  • Whether the survivor can stay in the property after the death of the other and, if so, for how long
  • How any children, including those from previous relationships, will be protected financially

The first step is to make contact with a legal practice with an experienced, respected team of family and will and estate planning specialists to discuss your specific circumstances and what you need to consider.

Acknowledged the latest Legal 500 2015 Guide as ‘Extremely bright and resourceful’, Vanessa has amassed almost three decades of experience in family law and has been head of the family law team at Keeble Hawson since 1991.

An accredited mediator, Vanessa is also a Resolution accredited expert and has been Chair of South Yorkshire Resolution since 2013.

A member of the Law Society’s Children’s Panel, Vanessa receives instructions from Children’s Guardians. She is also accredited by the Law Society Family Law Panel.

Vanessa’s work is typically characterised by sensible and practical advice that supports a speedy and pragmatic resolution.

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