Most people have heard of the term “pre-nup” but more often than not it is associated with significant wealth or celebrities. However, the purpose of a pre-nuptial agreement is to provide you with protection of your assets in the event that your marriage ends. Therefore, anyone who is planning on getting married should consider the benefits of a pre-nuptial agreement regardless of wealth (or celebrity status!).
What is a pre-nuptial agreement?
It may not be the most romantic prospect but a pre-nuptial agreement is an agreement you and your future spouse come to in relation to the ownership of your respective assets in the event that your marriage ends. Whilst it may be an uncomfortable topic to bring up, the reality remains that we can’t predict the future and therefore it is sensible to have an agreement in place just in case something goes wrong further down the line.
Is it legally binding?
A pre-nuptial agreement is essentially a contact between you and your future spouse. The Supreme Court in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 held that decisive weight could be given to a nuptial agreement that has been entered into freely by the parties on the basis that they fully understand the implications of the agreement, taking into account the circumstances of the case so long as it would not be unfair. Whilst the court still has the overriding authority when considering such agreements, if you sign one you should only do so expecting to be held to its terms.
What are the five main benefits of a pre-nuptial agreement?
- Protection of assets – You or your partner may have or expect to have in the future inherited assets, an interest in the family business or a gifted property, for example. The pre-nuptial agreement can “ringfence” these assets from one another. If you have entered into a pre-nuptial agreement which ringfences such assets, the court is less likely to award a share of that asset to the other party on any future divorce.
- Clarity and certainty – By entering into a pre-nuptial agreement, you and your partner can make it clear to one another that certain property belongs to you only and will not be shared in the event of a divorce and certain property will be considered joint and shared between you. By agreeing how your finances will be divided if you later separate or divorce, this saves you both the uncertainty, time and stress of going to court about your property and finances.
- Debt protection – If your partner has significant debts, either now or in the future, the pre-nuptial agreement can be used to protect you from having to satisfy those debts from your assets if you were to later divorce.
- Freedom to agree your own terms minimises acrimony on divorce – By agreeing how finances would be split on divorce or separation, you can come up with much more creative solutions than the court is likely to order. The pre-nuptial agreement gives you the freedom to decide your own terms rather than the court imposing its own solution on you. You are also less likely to be involved in an acrimonious dispute about the finances on divorce and this will help you maintain a positive relationship even if you do separate, which is really important, especially if you have children together.
- Save money – While you and your partner will incur legal fees for preparing and advising on the terms of the pre-nuptial agreement, it is usually much less expensive to do this than to go to court about the division of your finances should you later divorce.
How can I get a pre-nuptial agreement?
The process usually involves you and your partner instructing separate solicitors who will be able to give you independent legal advice and help you and your partner agree on the terms of your pre-nuptial agreement. Involving solicitors may feel like a daunting prospect. However, it is very important to make sure you have both received sound legal advice and fully understand the implications of the agreement.
If you would like some more information or would like to go ahead with a pre-nuptial agreement please do not hesitate to contact our experienced matrimonial team on 0113 322 9222 or by email at enquiries@consilialegal.co.uk.