Nuptial agreements: to do or not to do?
A nuptial agreement can help you and your partner agree in advance which assets should be part of your “separate” or “marital” property.
Should you get a pre-nup?
You can enter into a nuptial agreement both before and after you marry. Post-nuptial agreements have the same effect as pre-nuptial agreements. As to whether you should enter into an agreement before or after your marriage, this will depend on timing, the extent of negotiations likely to be required, and the potential consequences if you are not able to reach an agreement.
You might have inherited assets; family heirlooms; an interest in a family business or in your own business; or property acquired before your marriage. It may not be your first marriage or you may wish to protect the inheritance of your children or other dependants.
When couples divorce, arguments over their finances can be a very bitter and hard fought. Agreeing the value and division of marital property can be difficult enough, but what if you cannot agree which assets fall within the “marital pot”?
A nuptial agreement can help you and your partner agree in advance which assets should be part of your “separate” or “marital” property. Essentially, “separate” property can be ring-fenced in order to ensure that, so far as possible, it is not subject to division or sharing in the event of divorce.
Are nuptial agreements standard documents?
Although solicitors will often use precedent documents as a starting point, nuptial agreements are entirely bespoke. The agreement should set out agreed financial provisions in the event of divorce.
Can you agree that what you each bring into the marriage is yours and what you generate together is shared?
It depends. Nuptial agreements are not completely legally binding. In order to be upheld, the effect of the agreement must be fair. It may be that the agreement will need to provide for the wealthier party to pay the economically weaker party a sum of money in order to meet their needs and the needs of any children in the event of divorce. There are likely to be many variations of what will or will not work for the couple (and any children) involved.
How might entering into a nuptial agreement affect your relationship?
Lots of people find it very difficult to talk about their financial affairs and to make plans for what they hope will be a worst-case scenario. Ideally, open and informed discussions will help to improve communication, provide clarity and increase trust.
What makes a qualifying nuptial agreement?
The Law Commission’s recommendations
On 27 February 2014, the Law Commission published a report which recommended legislative reform to make nuptial agreements legally binding.
Legislative reform has not taken place but it is worth bearing in mind and applying the criteria below in order to ensure that your nuptial agreement ticks all the right boxes as and when reform takes place.
The criteria are:
The agreement needs to be validly executed (as a deed). As part of the execution requirements your signature will need to be witnessed. The agreement should contain a statement in which you confirm that you understand that the agreement is a qualifying agreement that will remove the court’s discretion to make financial orders on divorce except to meet financial needs.
You should agree and execute the agreement at least 28 days before the wedding.
You will both need to provide details of your financial circumstances. This is known as disclosure. Normally you provide detail of property, bank accounts, investments, business valuations, pensions, income and any other material information.
You will both need to obtain independent legal advice.
The agreement must not prejudice the rights of any children.
The agreement should meet the needs of both parties. Depending on the circumstances this may include provision for both income and capital needs. Needs are fact specific. Not only will they be dependant on the specific circumstances of each couple but they are also likely to change in time.
Are nuptial agreements legally binding?
It is not possible to restrict the discretion of the family court and as a result, nuptial agreements are not 100% legally binding. However, a nuptial agreement will have significant weight in financial proceedings for a divorce and will be given effect if it is entered into:
- Freely by each party;
- With each party having a full appreciation of its implications;
- In circumstances where it is still fair to hold the parties to their agreement at the time of the divorce or separation.
'Freely entered into' - what does this mean?
You must enter into a nuptial agreement of your own free will, free of pressure and having negotiated the agreement on an equal footing.
Understanding the implications of a nuptial agreement, how is this achieved?
You should each provide details of your financial position, including documents if required. You should also each obtain independent legal advice.
How do you know whether a nuptial agreement is fair?
This will depend on the circumstances of the couple and the assets involved. There is nothing inherently unfair about ring-fencing property, including pre-marital and family wealth.
Instead, what is fundamental is that a nuptial agreement does not prejudice the rights of children, that it remains relevant and that its provisions continue to meet the parties’ needs.
How do you make sure that a nuptial agreement remains relevant?
Although an agreement cannot cater for “unknown unknowns” it may be possible to make provisions for specific future circumstances in a nuptial agreement. These may relate to the length of the marriage and the birth of children.
Ideally, a nuptial agreement will include a review clause linked to trigger events which will help to remind you to review agreement so that it continues to suit and to meet your needs.
Contact our family law team
If you would like to receive any further advice in respect to nuptial agreements, please contact one of the family law team.
Our Nuptial Agreements Legal Team
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