When a party fails to disclose assets in divorce proceedings, the courts are entitled to draw...
If you are preparing for marriage or considering entering into a civil partnership, protecting your assets may not be at the top of your 'to do' list.
While it may not appear the most romantic gesture, a prenuptial agreement can provide couples with a sense of security. It can also be particularly useful when couples have big differences in income levels, are entering a second or subsequent marriage, or have acquired property or assets before their current relationship and want to protect them in the event of a breakdown in their relationship.
A prenuptial agreement is an agreement entered into prior to a marriage or civil partnership. The agreement outlines ownership at the time of marriage and details how assets should be divided in the event of divorce or separation. Similarly, a postnuptial agreement addresses these same aspects but is established after the wedding or civil partnership has taken place. However, it is important to note that in England and Wales, they are not legally binding at present, and it is important to consider the conditions in which the prenuptial is created and when. The agreement should be signed at least 21 days before the wedding, be reasonable, up-to-date, and drafted by a family lawyer with both parties receiving legal advice and providing full financial disclosure.
Whilst they are not legally enforceable, the court has the authority to exercise wide discretionary powers to distribute family assets during a divorce, aiming to ensure fairness between the couple. A prenuptial agreement is one of the factors that the court takes into account when making these decisions.
Do I need a prenuptial agreement?
The prenuptial agreement is a way of setting out your intentions before marriage or civil partnership so that in the event of a relationship breakdown, misunderstandings can be minimised.
Upon divorce, the court has wide discretionary powers to distribute family assets as they see fit, to bring about fairness between the couple. A prenuptial agreement is one of the factors that the court will take into account when exercising its power and sets out an agreed plan for:
- Any inheritance or anticipated future inheritances, in terms of money and assets.
- Assets and/or properties that may pose challenges when dividing them equally.
- Providing for children from previous relationships, ensuring certain assets are earmarked for their benefit and safeguarding their inheritance rights. You should also make a will to ensure everything is legally set out.
- Maintaining control over a business interest.
- Shielding against liability for any outstanding debts through the inclusion of a 'debt clause' in the prenuptial agreement.
It is particularly relevant where you both have assets and children from previous relationships.
Is a prenuptial legally binding?
Currently, both prenuptial and postnuptial agreements are not legally binding in England and Wales. However, Courts consider them along with other factors like the marriage duration, financial assets, and contributions and it is likely that such agreements will be made legally binding in the near future.
Can I change a prenuptial agreement?
Yes. You can change a prenuptial agreement. You should consider:
- Mutual Agreement: Generally, both parties (you and your partner) must agree to the changes in the prenuptial agreement. This is typically done through an amendment or a postnuptial agreement, depending on the timing (before or after marriage).
- Legal Advice: It is advisable for both parties to seek independent legal advice when making changes to a prenuptial agreement. This ensures that each person understands the implications of the changes and that the new terms are fair and legally sound.
- Documentation: The changes to the prenuptial agreement should be documented in writing and signed by both parties.
- Timing: If you want to modify the agreement before the marriage, it's typically done through an amendment. If you wish to make changes after the marriage, you would typically use a postnuptial agreement.
How much does a prenuptial agreement cost?
The total cost of an agreement varies based on several factors and the complexity of your situation. Our commitment to transparency means that you can expect a clear and comprehensive quotation for your agreement at every step of the process.
What is a postnuptial agreement?
A postnuptial agreement is a similar legal agreement that is entered into after the marriage or civil partnership. It might be entered into before or after separation. Read more about postnuptials here.
It is important to note that a single lawyer cannot provide advice to both you and your partner when creating a pre or postnuptial. To ensure fairness, the process requires that each party consults with their respective lawyers. For this reason, seeking advice early in the process is crucial. Our specialist prenuptial agreement team can assist you in drawing up prenuptial agreements as well as postnuptial agreements. Call us on 01827 317070 or email sdavies@pickerings-solicitors.com
