Pre-nuptial agreements (“pre-nups”) have become more popular in recent years, but they are not just for the rich and famous. Following the marriage proposals at Christmas and on Valentine’s Day, and the ladies who proposed on 29th February, more and more couples may now be turning their minds to having a pre-nup as well as wedding planning.
Here are five key considerations to help improve the chances of a pre-nup being binding:
1. The couple should sign up to the pre-nup no later than 28 days before their wedding day. This is to avoid the danger of either party feeling rushed and under pressure to sign up to a pre-nup when he/she is already busy preparing for the wedding itself. The couple should therefore aim to instruct their solicitors to draft and negotiate the pre-nup ideally no later than 6 months before the wedding day. As soon as a couple become engaged it is a good idea to start the discussions and take legal advice to avoid a last minute rush!
2. The couple should both take legal advice from different solicitors. It may feel uncomfortable when the couple is happily in love and planning to get married to have to see different solicitors, but they will both probably have different perspectives and goals which they can explore freely with their own solicitor. Commonly, one party or their wider family wants the pre-nup to protect their greater wealth being brought into the marriage, but the other party must be given the opportunity to have advice about what the potential consequences are of agreeing to a pre-nup.
3. The pre-nup must be fair and meet the couple’s needs. It is important to think carefully about what provision is made to meet the financially weaker party’s needs. One party must not be left in a predicament of real need. If they are this means the pre-nup itself may not hold water and it will have been a waste of time and money to have had one in the first place. There sometimes is a temptation simply to provide for the financially stronger spouse’s money to be protected but little thought is given to what the other spouse will need, for example to meet their housing needs.
4. The couple should both make full disclosure to the other, usually via their solicitors, of what they have in terms of property, bank accounts, investments, policies, debts, valuable items such as cars, jewellery and boats, pensions and their incomes. This ensures they both go into the marriage and the pre-nup with their eyes open to the other’s financial position.
5. If there are already children, or children may follow the marriage, their needs must be provided for.
The above come from recommendations made by the Law Commission as well as case-law.
Whilst pre-nups may appear unromantic they are pragmatic, particularly where there is an imbalance of financial contributions coming into a marriage. This can be especially relevant on second and third marriages.
If you would like further advice, don’t hesitate to contact Sarah French, specialist in Family Law at Moore Blatch on 02380 718878 or email firstname.lastname@example.org