For anyone driving a car in England there’s a legal requirement to take out car insurance. When buying a house a lender will often want a guarantee that the home owner has building insurance. For many of us, we may also have life and/or critical illness insurance, pet insurance even mobile phone insurance. So why don’t more of us insure against our marriage by way of a pre-nuptial agreement?
There’s an assumption that pre-nuptial agreements are only for celebrities and the wealthiest of individuals. However, if you’re getting married and you answer YES to any of the following questions you should be thinking about a pre-nuptial agreement:-
- Do you own your own house?
- Do you have a business?
- Do you have a pension?
- Have you inherited some money or are you likely to do so?
- Do you have children?
- Is this your second marriage?
The list is endless.
The purpose of a pre-nuptial agreement in a nutshell is to provide you with some form of asset protection in the unfortunate event that your marriage comes to an end. Whilst bringing up the matter of a pre-nuptial agreement is not a romantic prospect, in other countries a declaration of pre-marital assets is compulsory. Unfortunately, whilst none of us choose to marry with the intention of separating we cannot predict what the future will hold and just as we cannot predict our life expectancy we cannot predict the length of our marriage.
A pre-nuptial agreement does not, as the law currently stands, prevent a person from trying to make a claim over their spouse’s protected assets on divorce. Nevertheless, the Courts do recognise that a properly executed pre-nuptial agreement, satisfying certain qualifying criteria, carries significant weight on divorce.
What is a Pre- Nup?
An agreement entered into prior to marriage or civil partnership to protect assets you have acquired such as money or property, or assets/financial interests you may go on to acquire and to provide some protection for you against future relationship breakdown.
What is a Post Nup?
Similar to a pre-nup, the difference being that the agreement is entered to following marriage/civil partnership. Both types of agreement can be thought of as insurance for you to guard against the unknown and provide some peace of mind.
Will the agreement be legally binding?
The agreement is a contract between you and the other party. The Government is currently looking at making pre and post nuptial agreements legally binding. It is not the presence of the agreement that is the important factor but rather that the agreement contains important legal safeguards which are as follows:-
- In the case of a pre-nup the agreement should be entered into no later than 28 days prior to marrying or entering into a civil partnership;
- You and your other partner must have had the opportunity of taking independent legal advice upon the provisions of the agreement;
- A schedule setting out your current financial position should be appended to the agreement;
- The agreement should contain a certificate of execution by two independent firms of solicitors;
- The agreement should contain a provision for review on the happening of certain events.
Specialist legal advice is required to ensure that the agreement stands the best possible chance of being upheld if subject to challenge.
Is a pre –nup or a post nup worthwhile entering into?
England and Wales is one of the most generous divorce jurisdictions in the world. A pre or post nuptial agreement can be a very effective way of limiting the other party’s claims. Having an agreement is the best legal method of protecting assets such as pre-acquired money, or property, business interests, interests under family trusts and future inheritances against claims being made in the future by the other party.
Pre and Post nups are also very worthwhile if you have children from a previous relationship whom you would like to financially support and make provision for. Under English Law there is no automatic ring fencing of assets of any description on divorce/civil partnership dissolution and having an agreement is a useful tool to help protect your assets against the unknown.
For more information and for an initial free chat call Sally Clark or Laura Clapton on 0113 357 1315 or email enquiries@consilialegal.co.uk