Thinking about the future downfall of a marriage that is yet to take place is not the most romantic discussion to have, so why are prenups (also known as prenuptial agreements) becoming an increasingly important subject to many couples that are planning to marry?
It is not because they see divorce looming on the horizon, but because they have a realistic notion that it may…
What are prenups and what should they contain?
A prenup is a formal agreement in the form of a contract, between two people, made before they enter into a marriage or civil partnership in which they set out their agreement as to how their assets are to be divided in the event of a divorce or dissolution.
Each agreement is tailored to each couple and limited to what they wish to include. This could be, for example, property they acquired before the marriage, business interests, inheritance and the interests of any children they may have from a previous relationship
Are prenups legal?
Currently prenuptial agreements in England and Wales are not legally binding, however the law governing prenups has evolved over the years. The well reported 2010 case of Radmacher -v- Granatino has had a huge impact and led to a landmark ruling.
Courts are becoming increasingly likely to consider the agreements as relevant to the division of matrimonial wealth, and enforce them, unless they see any fair reason to do otherwise.
There are also other factors that the court will consider, such as whether both parties sought legal advice prior to entering into the agreement and the time between the agreement being signed and the wedding
If prenups are not legal, why should we get one?
Although not legally binding, a prenup can offer a safety net to both spouses. Courts can look at an agreement and decide to respect the wishes of the couple, so long as they consider that it would not be unfair to hold them to it.
Current statistics regarding marriage and divorce show that many couples are tying the knot later in life, by which time they may have accumulated assets and a high income stream, which they may wish to protect.
There are also many couples who have children from previous relationship; they may wish to preserve the assets they accumulated prior to their new relationship, so that their children’s inheritances are protected.
Similarly, a person who established a business before their marriage or has a large inheritance, may wish to protect it in a divorce.
What happens if we do not have a prenup?
In England and Wales, the courts will look at the couple’s roles and values as equal, even if one is considered an ‘economic provider’ and the other is the child carer or homemaker. The usual starting point for a division of assets will generally be an equal split, the needs of both spouses (and any dependent children) will then be taken into account.
Some couples can find this unjust, especially if they had significant property before even meeting their spouse, which became ‘matrimonial assets’ when they married.
Is it easy to get a prenup?
You should seek professional advice from a suitable specialist-and you should do so in good time before the date of your marriage/civil partnership. Do not leave it to the last minute or you risk it being overturned. You should make sure you have had sufficient time to carefully think about, discuss and agree what you would like the prenup to cover and ensure there is sufficient time for you both to have legal advice and meet the required formalities before signing.
Are you looking to get a pre-nup?
Contact our family and divorce solicitors in Ruislip, Middlesex
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