Prenuptial Agreements – What are they, what do they entail and are they Ironclad ?

General - Interesting Topics Family Law

The idea of asking your soon to be Husband or Wife to enter into signing a PreNuptial Agreement can sometimes feel a little lackluster. However, it is an important step to consider in the heart of wedding planning because one should be aware of what may happen in the event the worst came to the worst. It should be seen as a responsible step to fashion financial security not only for the wed-to-be’s but also for any child / children that may be involved or business partners. Of course every situation and all people are different, but it`s certainly worth thinking about.

A prenuptial agreement stipulates ownership of assets prior to the marriage along with how assets should be apportioned if the marriage was to reach an irretrievable end. It is useful to evidence what the parties both brought the marriage, at the very least. It is also possible with a prenuptial agreement to protect any future inheritance should that need to be a consideration. Whilst it could be termed a ‘who is getting what when we divorce’ agreement, divorce and separation is just as complicated as all things concerning marriage and there can be much more to it than that. Whilst all couples’ circumstances are entirely different and each agreement will differ depending on what is to be protected, we have put together a ‘what to consider’ list to help you to decide whether a prenup is right for you.

PROTECTING MY SOLELY OWNED ASSETS

It is not uncommon for one party to the future marriage to be bringing more to the table than the other; whether that be a sum of savings, a business or a property. It is also not uncommon for that same party to want to protect those assets that they brought to the table at the beginning of the marriage to help to facilitate a standard of living enjoyed by both parties.

A prenuptial agreement can clearly determine the boundaries between who owned what and when, which can ensure that separately owned assets remain as separately owned in the event of the breakdown of the marriage. A prenuptial agreement is often considered when one party owns in full or part of a business, or they have a business partner. This is particularly important given that the agreement can iron out difficulties for other people that may be involved in the business by specifying how the business is valued etc in the event of the breakdown of the marriage.

PROTECTING MY INCOME

If one party to the upcoming marriage has a higher income or greater earning capacity than the other then a prenup can offer some financial security in protecting such income, perhaps only in the early stages of marriage, but nevertheless a level of protection can be offered. Similarly, the agreement can also protect a spouse that may be giving up their earning capacity to raise children or to support the lifestyle of the other spouse. Barring out spousal maintenance can be deemed to be unfair and this needs to be given careful consideration when drafting any agreement.

It may also be the case that one party has a substantial level of debt and if the marriage ended the other party would rightly not want to be burdened with being responsible for such debt given that it was not their debt to begin with. The agreement can stipulate what debt was who’s at the outset of the marriage.

WHERE ELSE CAN A PRENUP BE IMPORTANT

Not only can a prenuptial agreement deal with financial matters such as assets and liabilities, it can also deal with anything else that you may feel is important to you. For example, if you want to specify the ownership of a pet if the marriage was to breakdown or any future educational matters for children, it can be written into the agreement.

Perhaps one of the most important occasions to have a prenup is when the upcoming marriage is your second marriage. In most cases when a second marriage occurs there are children of previous marriages involved and each party may wish to protect their assets for their own children. In the event of divorce, a prenup can guard against any assets being diminished for the future inheritance by their own children.

Most people have the misconception that a prenuptial agreement is only for the rich and famous. However, even if you do not have great wealth to protect, a prenup can still be very useful. Divorce can be a very stressful, emotional and testing time and in most cases, there is a real concern regarding litigation. Litigation can be very expensive. A prenup can mean that there is less to litigate over. But it is important that you are aware that a Judge in the event of divorce will always need to approve any financial agreement and ensure that the financial needs of both spouses are met with the agreement that has been reached. Any agreement must therefore be fair in all the circumstances.

IS A PRENUP VALID AND LEGALLY BINDING?

Let us be clear, no pre-nuptial agreement can ever be “ironclad”.  

Following the decision by the Supreme Court in Radmacher v Granantino [2010] UKSC 42 the Courts in England and Wales take account of Prenuptial agreements providing that a number of pre-requisites have been met as follows :

• Full disclosure of assets, liabilities and debts (worldwide) must be available for both parties to view before signing the agreement; and
• The agreement has to be voluntarily entered into.
• The agreement must be signed before the marriage takes place, at least 21 days before the legal ceremony.
• Each party must take independent legal advice before signing the agreement.

In terms of the document being legally binding, strictly speaking, prenups are not enforceable in their own right. However, a Judge will generally give prenups some weight in terms of financial separation of assets on divorce. In most cases, Judges in the UK will try to uphold the prenup provided that it is correctly executed, valid and fair on both parties and any child / children of the family. Ultimately, in the event of litigation, it is for a Judge to make the final decision with regards to financial settlement but a prenup is a way to avoid at least some of the uncertainty.

CAN A PRENUP BE CHALLENGED

There is no need to be concerned that a prenup cannot be challenged because in short it can. In the event that circumstances have drastically changed throughout the marriage and you believe that this now renders the agreement unfair then you can seek to challenge a prenup. A court will always be concerned with whether the agreement is fair based on the circumstances of the parties at the time of separation and in the event, it is not then a court will make an alternative ruling that reflects the needs of both parties at the time the Judge considers their case.

HOW CAN WE HELP

Should you wish to seek further advice on whether a prenup is right for you then please contact us for further information on the process and costings. It is always important that you are fully informed before embarking upon this process and we are here to help you.

We have Solicitors able to assist you in throughout the Country and consulting rooms in  Kendal, Lancaster, Preston, Bath, Maidstone, Kings Hill and Sevenoakes, Manchester and London .

All information is correct on the date of posting.