Many people would say that those who research prenuptial agreement are cynical, that you should go into a marriage believing with all of your heart that this relationship will be the one that lasts for the rest of your life.
Whilst this is true, it’s important to understand that, as well as a way to show your other half and the world how much you love each other, marriage is also, in reality, a type of legal contract.
In essence, when you marry your other half, you are tying yourself to them, not just on an emotional level but also on a financial one.
A prenuptial agreement is a contract that is entered into before you get married (post-nuptial agreements are also possible for those who are already married), which sets out what you want to happen to yours and your other half’s assets, if your marriage doesn’t work and you need to get a divorce.
Prenuptial agreements are more well-known for being entered into by the very wealthy, especially when one party brings more money into a marriage than the other.
Some argue that prenuptial agreements should be entered into by anyone who is getting married or entering into a civil partnership.
There aren’t many people who go into a marriage believing that it may, in the end, break down. In the initial stages of a relationship, your rose-tinted spectacles are often stuck firmly in front of your eyes, making your other half seem the most wonderful person in the world. And yes, he or she may be a perfectly wonderful, lovely, thoughtful person. But life has the habit of surprising us….best laid plans and all of those clichés.
Those rose-tinted glasses may fade over the years. They may even fall off altogether. You may spend the rest of your life with your other half or things may not go the way you’d hoped for and you may decide to go your separate ways.
As solicitors, we are often criticised for being cynical. And maybe we are, as many of our clients are going through a divorce when they come to us for help and advice. But none of us know what the future holds. We take out insurance on our homes and on our cars for that very reason. Many of us even take out life insurance, to ensure that our families are looked after, should the worst happen.
So why are so many of us afraid of even discussing prenups with our other halves? After all, our lives today may look very different to the ones we have in a year’s or even a decade’s time.
Although not necessarily the most romantic of conversations to have with your fiancée, coming to an agreement now, when you are both very much in love and on good terms, about how your finances should be dealt with if you ever decide to go your separate ways, is much more preferable to lengthy (and often costly) negotiations, with someone who you may no longer see eye to eye with.
The financial aspect of a divorce is often the most difficult and time-consuming part of separating from your spouse.
We’re often bombarded in the press with stories of lengthy and costly divorces, involving celebrities or high net worth individuals. Many of us have heard the horror story of the divorce that takes years and ends up costing the couple most of their worldly goods, in order to come to any kind of agreement about what will happen to the little that is left.
In general, the divorce process itself is actually quite simple. It is usually the financial settlement that can be the gruelling part and it is this that these articles are often referring to.
Going to court to ask a judge to decide your financial settlement can be the most costly and time-consuming part of the process. Thankfully, this is relatively rare, as most couples do come to an agreement between themselves, either with the help of processes such as mediation or collaborative law, or without.
If you want to know how your finances may be split if you divorce, it’s important to speak to our expert divorce solicitors.
Having a prenuptial agreement in place stating what you both want to happen to your assets should you divorce, could help to make things that little bit more simple.
Prenuptial agreements are not legally binding in England and Wales.
This means that even if you and your spouse enter into a prenuptial agreement, a judge does not have to enforce it. It’s important to understand that a court could decide that your financial settlement is going to look quite different to the one on your prenuptial agreement.
If you and your spouse have entered into your prenuptial agreement properly, the courts may be much more likely to enforce it, should you need them to do so in the future.
There are certain factors that a judge may consider when deciding whether or not to uphold a prenuptial agreement, such as:
You and your spouse should enter into your prenuptial agreement without any duress or pressure to make the other sign. If a judge thinks that one of you has used your power over the other to encourage them to sign, a judge may not enforce your prenuptial agreement.
It is vital for each of you to undertake a full and frank disclosure of your finances to each other, before entering into your prenuptial agreement. Neglecting to do this could result in your prenuptial agreement being given less weight by a judge in the future.
Ensure that both you and your other half get legal advice from a different solicitor regarding your prenuptial agreement and the implications of entering into it. If either of you fail to do this, a judge could decide not to enforce your prenuptial agreement in the future.
It’s important to leave as much time as possible between starting the process of entering into your prenuptial agreement and your wedding. Here at Austin Kemp, we recommend our clients to allow at least 6 weeks to enter into a prenup, otherwise a judge could give your prenuptial agreement less weight in the future.
Prenuptial agreements should be fair to both parties. If a judge thinks that enforcing a prenuptial agreement is unfair, they may decide not to do so.
If a prenuptial agreement does not take into account the needs of any children involved, a judge may decide not to enforce it.
If your finances, when you separate, look very different to when you entered into your prenuptial agreement, a judge may decide to give your prenuptial agreement less weight or not enforce it altogether. It is possible to amend a prenuptial agreement to reflect any changes in circumstances (for example, children being born). Speak to a solicitor for more information.
In order to stand the best chance of your prenuptial agreement being upheld by a judge in the future, it is important that it is entered into correctly.
Just because prenuptial agreements are not legally binding in England and Wales, it does not mean that entering into them should be taken lightly.
If you have been asked to sign a prenuptial agreement, it is important to seek legal advice from an experienced solicitor about its possible implications for your future and whether or not it is fair.
Romantic candlelit dinner chat it is not, but a conversation about what will happen to your finances should you need to go your separate ways in the future is, some would argue, an essential one to have.
It can be helpful to think about it in another way. Right now, you love your other half very much and would not (we hope!) wish them any harm. You would not want to think of them very distressed by something. Although a divorce is never going to be easy, having a prenuptial agreement in place may help to make things run more smoothly, for both you and your other half and could even save on lots of unnecessary stress due to lengthy negotiations, as you have both already agreed what will happen to your finances should you ever divorce.
Some would say that it is cynical to have the ‘if we split up’ conversation surrounding prenups. But would those same people agree that it is cynical to have home insurance or insurance for our pets should they fall ill or have an accident?
By taking out home insurance, for example, we are in no way hoping that are house will burn down (or even thinking that it will happen) but we are ensuring that if it does happen, we will be prepared.
Similarly, talking about prenuptial agreements doesn’t mean that we feel we may split up with our partner. It is just ensuring that if you do decide to go your separate ways, you may be more prepared.
As we mentioned above, it is essential to seek independent legal advice about your prenuptial agreement.
By ensuring that your prenuptial agreement is entered into correctly and with the right legal advice, you are giving it the best chance of standing up in court, should you ever need it to.
If you are not sure whether a prenuptial agreement is right for you, you could go and talk through your concerns with a solicitor. A good solicitor should be able to advise you of your options and talk to you about what your prenuptial agreement may look like.
Lastly, it is important to repeat that it is vital not to rush into a prenuptial agreement. Not leaving enough time for each of you to seek legal advice and fully consider the implications of what you are entering into, could make a judge less likely to enforce your prenuptial agreement in the future.
Our expert divorce solicitors can help you with a range of legal issues relating to child abduction, including:
For more information call our divorce solicitors on 0845 862 5001 or email firstname.lastname@example.org.
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