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Thinking about tying the knot? Why it is essential to consider a pre-nuptial agreement.

As Valentine’s Day passes and we welcome the arrival of spring, love is in the air and weddings are on the horizon.

However, when it comes to planning your nuptials, you cannot forget about the importance of protecting your assets.

In recent years, there has been a significant increase in the number of couples entering into a pre-nuptial agreement, to set out the financial arrangements if, unfortunately, their marriage breaks down.

Although no one goes into marriage with the intention to divorce, it is nevertheless vital to consider putting a pre-nuptial agreement in place.

Stuart Daniel, Head of the Family Law Department, outlines the process of setting up a pre-nuptial agreement.

What is a pre-nuptial agreement?

A pre-marital or pre-nuptial agreement (often referred to as a “pre-nup”), or a pre-partnership agreement in a civil partnership, is an agreement between a couple made before they formalise their relationship. Such agreements are designed to set out the financial arrangements that will apply, and what should happen to their property and assets in the event of a permanent separation.

This provides both partners with security and a practical solution to any future problems that may arise if they divorce.

If you are considering entering into a pre-nuptial agreement but are running out of time before the big day, you can make a post-nuptial agreement to establish the financial and other arrangements in the event of a dissolution or a divorce.

Whilst pre- and post-nuptial agreements are not automatically enforceable, the terms of an agreement were approved and held in favour of by the Supreme Court ruling in the case of Radmacher v Radmacher (formerly Granatino) in October 2010. Since this date, the courts have applied greater weight to pre- and post-nuptial agreements, which has provided greater security to parties getting married.

Should I put a pre-nuptial agreement in place?

Both partners need to consider carefully whether to put a pre-nuptial agreement in place or not.

If there are children from a previous marriage or relationship, a parent may well want to ensure that any money or property that they have at the time of the marriage is preserved for their children, rather than their new spouse or civil partner.

A well drafted pre-nuptial agreement can save considerable expense by avoiding Court Proceedings to settle financial arrangements.

Drawing up an effective pre-nuptial agreement

There are several factors for both partners to consider when drawing up a pre-nuptial agreement.

If you are considering entering into a pre-nuptial agreement, it is extremely important that you seek your own independent advice to guide you through the practicalities and advise you on drafting the agreement.

To ensure that the pre-nuptial agreement is fair:

The Agreement must be entered into no fewer than 21 days before the proposed wedding date.
Both parties should have the benefit of their own independent legal advice.
Full financial disclosure should be exchanged between the parties before entering into an agreement.
Changes to circumstances must be provided for in the agreement – for example, the birth of a child, earning capacity, inheritance etc.
The agreement should be reviewed at regular intervals to acknowledge any changes in circumstances and keep the document up to date.

At a time of high property prices, there is an increasing trend for parents to make financial contributions to a first home for their children or, perhaps at a later stage, to buy a larger property jointly with a son or daughter and their spouse and to share it with them.

If the parent views the money as an investment, or wishes to recover it if relationships break down, this should be recorded in a legally binding document. This will help prevent potentially costly disputes on divorce as to whether the money was intended as a gift.

If the money was provided as a gift to the child, it is likely to form part of the marital pot of assets available for division in a subsequent divorce or dissolution. In these circumstances, a pre-marital or post-marital agreement may be used to protect the recipient’s interests.

Preparations for marriage go beyond the big day

If you are wondering whether a pre- or post-nuptial agreement is right for you, a family law specialist can provide independent, objective advice to help you make an informed decision.

You should always seek professional advice tailored to suit your specific circumstances before entering into any arrangements.

Our dedicated team of family lawyers can help you to ensure that your assets are protected, leaving you to enjoy your wedding day stress-free.

Contact our family law experts today for tailored advice on setting up a pre-nuptial agreement.

Stuart Daniel

Director – Head of Family Department

I qualified as a Solicitor in 2006 and now specialise in divorce, financial settlements, childcare arrangements and Pre Nuptial Agreements. I have many years’ experience as a private family lawyer having worked with two other local firms before returning to Mander Hadley, where I first undertook work experience during my university studies.