What is a pre-nuptial agreement (pre-nup)?
A pre-nup is a contractual arrangement made between two individuals before they marry or enter into a civil partnership.
Why do you need a pre-nup?
There are many reasons to consider arranging a pre-nup, especially for those who have built up their assets, either by their own efforts or who have received family wealth. There's also a growing number of couples seeking pre-nups as they are marrying for a second time and/or have children from earlier relationships who they wish to protect financially.
We sympathise with people who are uncomfortable at the prospect of negotiating an agreement to deal with the end of a marriage that has not yet even begun, but blind optimism is not always a good thing. One may wish to think of it as an insurance policy, just in case the worst should happen.
The best way of dealing with the discomfort is to be as fair and transparent as possible with your partner as the agreement is being negotiated. It should not be a one-way street and there should be open dialogue between the couple and the solicitors. This has the added benefit of ensuring that the pre-nup has the best chance of withstanding the scrutiny of the court if the marriage fails, because the court will want to ensure that the agreement meets the parties’ needs – otherwise it has the power to disregard it.
Is a pre-nup legally binding in England and Wales?
It is well known that people prefer predictable outcomes, and it should be noted that, although the Law Commission recommended in 2014 that pre-nups should be legally binding in the UK, this has not yet become law. Whilst not binding on our courts, family lawyers are seeing numerous cases where pre-nups are given decisive weight by the family courts with judges seeking to follow the terms, but only if they are voluntarily entered into, properly drafted, and meet certain safeguards.
Lawyers play a vital part in ensuring that pre-nups are properly put together so that they can withstand judicial scrutiny.
Time is of the essence
A pre-nup is a carefully crafted, bespoke document. There should be a health warning attached to anyone seeking to download an online version or recycle someone else’; one size does not fit all. The couple will need time to each be properly advised about the law relating to pre-nuptial agreements and the document itself so that they fully understand the rights and responsibilities that each of them may be acquiring or surrendering. The agreement should be completed at least 4 weeks prior to the wedding so they will need to factor in plenty of time prior to that in order to deal with it effectively.
How TWM can help you
At TWM, our specialist solicitors have extensive experience in dealing with pre-nups and can advise you on creating, signing or challenging pre or post-nuptial agreements. If you would like to discuss your individual needs with our experts, please contact our Family team today.