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Fairness the key to drawing up Prenuptial agreements

23 Jan 2019

Once upon a time, pre-nuptial agreements were something that were the preserve of Hollywood film stars and other celebrity couples whose lives were infinitely remote to mere mortals like us.

However, over the years, they have gradually become an increasingly common occurrence and are now documents that I come across in my every day work on a relatively regular basis.

A prenuptial agreement is a contract signed between a couple at least 21 days before they get married which sets out how their assets will be divided in the event of divorce.

They are an inherently difficult concept in themselves as they implicitly acknowledge the possibility that, at the time that a soon-to-be-married couple should be focusing completely on a future life of endless wedded bliss, there is a chance that their particular love story won’t end up being entirely hearts and flowers.

With roughly two in five UK marriages currently ending in divorce, it’s not difficult to make the argument that this could be the case, but this doesn’t make things any easier, especially if, as is often the case, it is the parents of one of the parties that suggests or insists on such an arrangement due to one party being wealthier than the other because of gifts or inheritances received as a result efforts made by the parents.

At this moment in time, prenuptial agreements are not binding on the divorce court but are taken into account as one of the circumstances of the case, and if the court thinks that the agreement provides a fair outcome, it could make the agreement legally binding.

Each party should engage their own solicitor as part of the process and should also be absolutely transparent about all the assets that they own.

Every prenuptial agreement is tailored to the individual circumstances of the couple involved.  While agreements often state that any assets brought into the marriage, or assets received by way of gifts from family and inheritances during the marriage, will remain each individual’s property if they divorce, this need not be the case, and couples can state what outcome they would prefer if they divorce.

Nicola Matthews 2017

Monies earned by a couple during their marriage may be added up and divided between them, but it can be difficult to put a financial value on some aspects of a marriage, such as raising children.

One partner may have worked all hours of the day to build a successful business that they might consider, in the event of a divorce, to be wholly down to their efforts, but if the other party had not stayed at home and taken on the vast majority of the responsibility for bringing up the kids, would it have even been possible for the former to spend so much time making the business so successful?

Regular review clauses also ought to be included in any agreement which either mark particular landmarks in a marriage, such as the arrival of children, the marriage lasting for a certain number of years or if any specific foreseeable situations arise, like one of the parties becoming disabled or incapacitated.

It’s crucial that any couples considering a prenuptial agreement start planning for it well in advance – after all, there’s enough for everyone to be thinking about in the run-up to a wedding without having to spend the days preceding the ceremony rushing through legal documents.

Talk openly and honestly to your partner about whether and why you think taking this step could be right for your relationship, and ensure you get expert advice as early as possible about what you should be doing if you do decide to go down this road.

For more information on any of the above, or how we can help you, please contact Nicola Matthews, or call 0191 232 8345.