Why everyone should get a pre-nuptial agreement

A pre-nuptial agreement (also known as ‘pre-nup’) has always been a sore topic for couples when considering financial implications should there be a breakdown in their relationship. It has been seen by many as a cynical way to start a union between a couple before marriage. However, one should remember that over 1 in 3 people get divorced in the U.K and a pre-nuptial agreement is advised by family lawyers to be a sensible thing that all couples should consider. Pre-nuptial agreements are no longer seen as exclusive to the super rich. A well drafted pre-nuptial agreement can safeguard each party’s assets and considerable weight will be given by the judge in the division of assets following the breakdown of a marriage. Pre-nuptial agreements were developed through the landmark Court decision made in Radmacher v Granatino1 and completely transformed the way the Court and the public regard pre-nuptial agreements. The key points found in this case are:

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When considering a pre-nuptial agreement, one must start with the relevant legislation namely section 25 of the Matrimonial Causes Act 1973 – this means that the judge must consider all the relevant circumstances when deciding the parties’ finances on a divorce. This does not allow the pre-nuptial agreement to override the legislation and having one in place does not stop either party from applying for financial remedy on divorce.

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However, having a pre-nuptial arrangement in place will greatly impact the way ajudge deals with the case. Where parties have entered into a pre-nuptial agreement voluntarily; that is without undue pressure and having been informed of all implications; the court is likely to give effect to this pre-nuptial agreement.

Although a pre-nuptial agreement is not legally binding, it is an agreement that holds great weight when entered into correctly. When deciding your financial arrangements the judge will seek to uphold the agreement.

A pre-nuptial agreement is also good for:

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Safeguarding assets for children from a previous relationship

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If you know that in the foreseeable future you will be the recipient of an inheritance

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If you are expecting future wealth through career progression or financial investment

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If you have significant pension provision

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If your spouse has ongoing debt, a pre-nuptial agreement can limit the debt liability of the other party

It gives both parties a say on how everything will be spilt in the event of a divorce. This is particularly attractive regardless of whether someone has significant assets or not as divorce in the best of times can be particularly stressful. It is advisable to get the terms of the agreement drafted in the event that animosity develops. This means you will be able to think without any pressure from your spouse as to how you would like your assets to be split.

You can include a wide range of assets in your pre-nuptial agreement but there are a few things that you cannot include or which will not be enforceable should you still choose to include them. These are:

1) Personal matters

2) Child maintenance arrangements

3) Child arrangements

4) Illegal matters

5) Lifestyle matters

After instructing your solicitor in respect of a pre-nuptial arrangement, they will be able to advise on exactly what can and cannot be included in your pre-nuptial arrangement.

There are certain criteria which must be followed in order for a pre-nuptial arrangement to be binding. It should be done at least 28 days prior with all assets and properties disclosed by both parties. Also, it must be entered into without any duress and you must each get independent legal advice prior to signing the agreement.

Our team of expert family lawyers will be able to assist you with your pre-nuptial agreement. For more information please refer to our pre-nup service page or book a consultation on 01753 325100.

Harjas Sehra | Senior Partner

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