Steps to follow
Are you planning to get married or to enter into a civil partnership but want to protect some of your assets if everything should go wrong? Or is there a significant imbalance in the relative wealth between you and your spouse-to-be so that you both agree it would be unfair to split everything 50/50 should your marriage fail?
If so, a pre-nuptial agreement could be the answer. This is a binding legal contract in which couples formally agree in writing what will happen to their assets in the event of divorce.
You can download cheapie DIY pre-nuptial agreement templates from the internet, but you’re strongly advised to see a solicitor with plenty of experience of drafting pre-nuptial agreements to help you draw one up: pre-nuptial agreements can be complicated and there are a number of elements which must be satisfied to ensure that they would be enforceable before the courts.
Before both parties to the impending marriage sign the agreement, there must be ‘full financial disclosure’. This mean that each party must be honest about what assets they possess, what liabilities they have, what their income is and what they will get from their pension. This information will all be documented and attached to the agreement as a schedule.
Make sure the agreement isn’t totally unrealistic or unfair in light of current divorce law. If it’s weighted too heavily in favour of one party it’s unlikely to be upheld by the courts.
Make sure there is no evidence of duress or undue pressure before entering into the agreement or again it is likely to be unenforceable. If you feel your future spouse is putting undue pressure on you to sign, seek legal advice before you agree to anything.
To give your agreement more of a chance of being upheld by the courts, put a time limit on it: up to the birth of your first child is a good deadline, or perhaps after five years of marriage. If you still want some sort of agreement as to the division of assets to continue after either of these points you can always scrap the pre-nuptial agreement and enter into a post-nuptial agreement instead.
If either you or your fiancé/e have children from a previous relationship this should be acknowledged in the pre-nuptial agreement and it will need to contain provisions to ensure their interests are accommodated in any future financial settlement.
Under The Inheritance (Provision for Family and Dependants) Act 1975, if your spouse dies, you can apply to the court to have the terms of your pre-nuptial agreement varied to ensure that there is reasonable provision made for you and your children.
What to watch out for
Make sure the pre nuptial agreement is all signed and sewn up at least a month before the wedding. If it’s only created just before the wedding a court might see this as a sign that it was entered into under duress and refuse to enforce it. If it’s taking time to sort out and the wedding is looming ever-closer you might want to put your nuptials on hold until all the legalities of the agreement are sorted out.
Solicitor’s top tip
Make sure that both parties get independent legal advice before the pre nuptial is entered into – particularly the party who is most likely to lose out under the terms of the agreement – otherwise a court might be reluctant to enforce it. Each party needs to get their own solicitor – you can’t share one – who must be experienced in advising on prenuptial agreements.
The Law Practice
London Family Lawyer
Status of prenuptial agreements in divorce
Do I need a lawyer? (personal)
I want a divorce
Grounds for divorce
Dividing property on divorce
Divorce or nullity? Is there a marriage?
Defences to divorce
Preparing for a divorce