The six golden rules to follow to have confidence in your prenup

Ah, Christmas. That time of giving and receiving. Sometimes, that receiving can go beyond physical gifts. Some of us receive marriage proposals at this time of year.

The newly engaged couple might be embarking on a second marriage in a triumph of optimism over experience. But that won’t stop the fun of planning their special day down to the last sugared-almond favour.

But in all the excitement, they often overlook the financial consequences of an expensive divorce years down the line. That might sound unromantic. But, given that 42% of marriages are estimated to end in divorce, it’s a reality for many couples.

Later-life marriages

Marrying later in life is increasingly common. Couples could have built up capital assets as individuals long before meeting their partner. But, surprisingly, they’re not the group most likely to take legal steps to protect those assets.

A 2019 YouGov survey of 2000 adults in England and Wales found that it was the 18-24 age group who were most likely to enter into a prenup (properly known as a Nuptial Agreement). A prenup sets out what happens to property and wealth if the parties divorce and also when they die.

Let’s face it: if you can’t have an honest conversation with your partner about money before you get married for fear of causing offence, it doesn’t bode well for married life. At least the younger generation seem to have grasped this nettle.

Prenups not binding

But let’s start by busting a few myths. Firstly, prenups aren’t automatically binding. But this doesn’t mean they’re an expensive and worthless addition to the wedding-planning budget.

Current legislation doesn’t specifically deal with prenups and there’s no statutory requirement that the law should follow or ignore the terms. However, they ARE considered part of all the relevant circumstances of the case. This means that judges are obliged to consider attaching weight to them very carefully.

If you have specialist family lawyers who follow the rules, there’s no reason why, in the event of a challenge to the prenup on divorce, it shouldn’t be upheld. That means ensuring you get the document drafted properly and that it takes into account future events, such as children (when financial needs will change).

Statutory recognition

But prenups could soon become binding. The Divorce (Financial Provision) Bill has been progressing through Parliament. It proposes statutory recognition of prenups as being binding within financial distribution upon divorce.

As such, the agreement is likely to be reflected in the order of the court unless the ‘golden rules’ set out below haven’t been followed.

Prenups aren’t just for the rich and famous. They’ve become increasingly popular in the last ten years, following the landmark Supreme Court decision of 2010 in Radmacher.

Anyone who, for example, bought a house or accrued other assets before marriage should consider having one.

Inexpensive

If the assets are modest and the parties’ affairs straightforward, they can be prepared inexpensively, provided there’s general agreement on the terms.

Increasingly, couples are of different nationalities. Others will move abroad to work. These factors, plus the fact that prenups are enforceable in much of the Western world, make it essential to consider a prenup and get the right advice.

And those six golden rules? Here’s what you need to do to protect your assets with confidence:

1 Both parties must enter into the agreement of their own freewill

No ‘arm-twisting’ or pressure of any kind.

2 Both parties must be informed about the implications of the agreement

There must be no material lack of disclosure, information or advice. You must have a full appreciation of what you are signing up to.

3 The agreement mustn’t prejudice the reasonable needs of any children of the family

4 The agreement won’t be considered fair if it leaves one party in a position of ‘real need’

5 Take legal advice

6 Timing is crucial

The work on the agreement should be done well in advance of the marriage, if possible. Anything less than 28 days before the marriage runs the risk of later being unenforceable if one side asserts that there was pressure to sign it.

 For an initial FREE consultation on any aspect of family law, call Manders Law on 01245 895 105 or email us here.