Points to Consider for Pre-Nuptial Agreements

Pre-nuptial or Pre-marriage Agreements (“prenups”) represent a difficult issue for a couple to grapple with, and are often viewed with suspicion and seen as unromantic. As the title suggests, they are only raised when you and your partner have decided to get married, and are an additional pressure at a time which is fraught enough as it is.

There may be good reasons to enter into an agreement, such as the need to provide for your partner’s children from a previous marriage, or to safeguard a family inheritance from division if your relationship was to founder. It is a good thing, as it sets out clearly the parties’ expectations on the breakdown of the marriage, which is crucial to the resolution of a dispute. This serves to protect both proposed spouses from stress later on.

The agreement must fair. It would not be right for one partner to be debarred from claiming against the other, and this is something that courts in England feel is very important. This is particularly the case where circumstances have changed since the date of signing the Prenup, such as the birth of a child or one spouse becoming ill and unable to support themselves.  Judges have a free rein to decide whether or not to accept them, as there is no law saying that they should be recognised automatically, unlike many other countries worldwide.

Although the Agreements are increasingly being dealt with by the English courts, they remain largely misunderstood. There is no guarantee that such a document will be taken into account by a judge, and proper and comprehensive advice at the outset is essential. However, it should not be assumed that a prenup will not be upheld, as the judiciary appear to be moving in their favour, as long as they are reasonable.

In addition, partners should consider what should happen to their assets on their death, and take advice to bolster their prenup with  a Will. Would you wish to review it? if so, in what way and after how long? Many clients have assumed that they become redundant after a period of time; this is not the case. Should it be varied in certain circumstances? If yes, what are the triggers for variation?

There are certain necessary elements in English prenuptials which need to be included, to maximise the chances of their being recognised and enforced by the courts later if necessary. This list is not comprehensive, but has been drawn from cases on prenups where judges have set out various principles:

• It must be in writing;
• The document must be delivered to the other partner at least 28 days before the wedding date;
• There must be no pressure on one partner to sign the agreement;
• Both parties must have access to independent legal advice, which means that no one lawyer can talk to both partners;
• The party seeking to enforce the agreement must have given full and frank disclosure of their financial circumstances;
• The agreement should specify how long it will last;
• There may be a need for a lump sum payment to the less well-off party upon signing the agreement or during the marriage;
• The prenup should cover events such as the birth of children, including provision for maintenance, otherwise such an omission could invalidate the whole agreement;
• The prenup should cover what will happen if one partner inherits money or property during the marriage, and should clearly state how assets should be dealt with in as many circumstances as possible; and
• Who pays for the costs.

There are many aspects to think about when considering a prenup, whether you would like your fiancé(e) to sign one, or if you are the recipient of one. A prenup should always be considered where one or both partners have international elements, such as links with or property in foreign countries. At Blanchards Law we have links with good family lawyers in other jurisdictions who can advise appropriately on those. It may well be that you ought not to conclude your settlement in the United Kingdom at all, and the law of a different country ought to apply. We are able to draw upon our knowledge and experience to assist you in this decision.

At Blanchards Law, we recognise the need to deal sensitively and fairly with our clients. As a family law firm, we offer a holistic service whereby we can mediate and collaborate with our clients and other solicitors to reach a mutually acceptable agreement. We have drafted many prenups and it is extremely important to us that your relationship is unharmed.

©Punam Denley