When it comes to the legal side of getting married, one question often arises... Do I need a prenup? A Pre-nuptial agreement is a written contract signed by couples before they get married. They are designed to protect individual assets if the worst happens. If you have been thinking about getting a prenup, but aren't sure whether it is right for you and your partner, this is the article for you!
Laura Mortimer from Hedges Law has gathered the most common queries their family law team gets from wedding couples around pre-nuptial (and post-nuptial) agreements and answered them so you can make the right decision for you as a couple...
Who would usually get a prenup?
Nuptial agreements are not exclusive to the very wealthy or a-list celebrities, despite the media perception. More often now, people from all financial backgrounds are choosing to enter into them. This could be before they get married (pre-nuptial agreement) or after the wedding day (post-nuptial agreement).
At Hedges Law, we generally find those that enter prenup agreements tend to fall into 1 of 3 categories:
- Those entering into a first marriage (often younger couples) where one or both parties' parents have considerable wealth that may be gifted in the future or has been gifted to them already that they'd like to be protected.
- Couples who are getting married at a more mature age where one or both have previously been married. This is often to retain clarity of how their assets and finances will be owned in order to bring peace of mind to their families and protect the inheritances of any children or grandchildren.
- Those who are marrying at any age where one party has developed their own business and would like to protect that.
Are prenups legally binding?
Currently, nuptial agreements are not legally binding in England and Wales. However, they are highly persuasive in the Family Courts if they satisfy some key criteria. The most important of these are:
- Both parties entered freely into the agreement (nobody was forced into it)
- Both parties understood what they were agreeing to
- And most importantly, that the agreement is still fair to uphold. Which means that the terms of the agreement still meet the needs of both parties and the needs of any dependants.
What does a prenup include?
The prenup needs to satisfy the key criteria identified, so it does need to be detailed in order to do that. A nuptial agreement is a contract and a court will need to be persuaded to uphold it. Both parties should obtain independent legal advice separately and the individual parties respective finances will need to be exchanged. However, the provisions on separation can be as wide ranging as you wish.
For example, the nuptial agreement could simply specify specific financial assets that need to be protected and remain the sole property of just one party. Or, the agreement could go into more detail and explain the ways in which the financially stronger individual will support the other in the event of separation. This could involve paying that person a monthly amount or the transfer of some of their pension.
How can we make a nuptial agreement an amicable process?
We recommend being open and honest with your other half as soon as possible when considering a pre-nuptial agreement. It is best to not leave discussing the topic until the last moment. If left too late it could cause unwanted hostility between you and your partner as well as undermining the weight a prenup is given in the family courts.
While you will both need to obtain independent legal advice, many solicitors will be happy to meet with the couple together in the first instances (and sometimes throughout). It is a great way to ensure you are both on the same page and comfortable with the terms you are agreeing to.
What if I don't get a prenup?
Lots of couples choose not to get a prenup. It is a very individual decision. However, it is worth bearing in mind that without a nuptial agreement, the Family Court will likely view more assets as needing to be shared equally between both parties. For example, any financial gifts received by one party during the marriage may be viewed as being owned by both parties. Inheritances are treated differently, but they too could be used by the court in order to ensure the needs of both parties are met.
In terms of the family home, this will almost certainly be shared 50/50 between both parties. This would be regardless of who paid most towards it or whose name it's held in. Also, any businesses that have been developed or grown during the marriage will likely be viewed as joint property.
What is the aim of a prenup?
The aim of a pre-nuptial (or post-nuptial) agreement is to reduce the range of arguments that may arise during a divorce. These agreements are designed to provide peace of mind and reassurance to both parties and their families about what will happen if the worst did occur.
How do I talk to my partner about getting a prenup? Isn't it a taboo?
In the same way that you prepare a will or purchase life insurance, the nuptial agreement is there to provide clarity and security when you are making a big life decision. In our experience at Hedges Law, it can often be the person who is financially weaker requesting the agreement, not about the wealthier person in the relationship trying to avoid sharing their assets.
As with any important discussion, it is vital to pick your moment. Ensure that you are both calm and can speak freely about your feelings and thoughts. It is important that you both feel heard and your opinions respected. Of course, you can also seek legal advice together before entering into the agreement.
While it may feel a little awkward, try not to think of a prenup as being something that is entirely unromantic. Plus, it is always better to discuss these kinds of things when you are both happy and when you love and respect each other, rather than in a sad and stressful situation.
A prenup is actually a very positive means for both of you to ensure you achieve security. You'll know that you are marrying for the right reasons and that the individual who is financially weaker will be looked after and can avoid a stressful (and often costly) legal battle to get financial support if the worst were to happen.
Remember, the needs of both parties will still need to be upheld if it were ever needing to be used. And of course, chances are that it will remain filed away somewhere safe and never be needed!
If you would like to learn more about how a pre-nuptial or post-nuptial agreement could benefit your circumstances, please contact Hedges Law.
