“Should I get a pre-nuptial agreement?” This is a question that I am asked regularly. People enter into pre-nuptial agreements for a variety of reasons:
- protection of inherited wealth;
- protection of a family business;
- protection of a rapidly growing new business/start-up (entrepreneurs);
- wanting to secure an inheritance for children of a first marriage; and/or
- certainty if the worst happens and to avoid an expensive contentious battle over their finances, a bit like an insurance policy.
Pre-nuptial agreements in England have a better chance of being considered by a court as legally binding than ever before, provided very specific requirements are met. These include:
- independent legal advice being taken by each person entering into the pre-nuptial agreement;
- signature of the pre-nuptial agreement at least 28 days before the date of the marriage;
- full and frank financial disclosure being exchanged between the couple;
- the couple understanding the implications of signing the pre-nuptial agreement and what he/she may be giving up;
- there being no undue pressure on either person to sign the pre-nuptial agreement; and
- the pre-nuptial agreement meeting the basic financial needs of the less wealthy party.
Pre-nuptial agreements provide certainty about the division of finances in the event of a divorce. The English courts retain the power to override a pre-nuptial agreement if the financial needs of one party are not met. This aspect is often the source of frustration for clients, who want that certainty. The best way to ensure that your pre-nuptial agreement is upheld by a court is to provide a financial safety net for the financially weaker party. In that sense, it is possible to consider a pre-nuptial agreement as a way of mitigating (or lessening the impact of) the financial claims of one spouse against the other. Although listed as the final criteria in the list above, it is no less important, and it is often overlooked.
How do I raise the topic of a pre-nuptial agreement with my fiancé?
Before people even get to the stage of drafting the pre-nuptial agreement and considering its terms, I often find that people struggle to know how to bring up the topic of a pre-nuptial agreement with their partner. The way in which this conversation is started is rarely given much thought and yet the manner in which a person mentions even the word ‘pre-nup’, will influence the tone of the whole negotiation process. In the worst cases, a lack of careful communication and management of the conversation and sensitivities, particularly where extended family members are involved, can lead to the breakdown of the relationship altogether. Usually, however, if the couple are supported and the conversation surrounding the pre-nuptial agreement is sensitively managed, it is possible to engage in a pragmatic and fair discussion, which leaves both people feeling confident and comfortable about what they are doing.
Many of our European neighbours have default marital property regimes and therefore every couple must tick a box in a form when they legally marry, to confirm how they wish their property to be owned and ultimately divided in the event of a divorce. On the continent it is, therefore, a conversation that each couple must have. This is a big cultural difference compared to couples marrying in England. People often struggle to talk about money and it can feel particularly unromantic for someone to tell their intended life partner, shortly after an engagement, that they want to discuss a pre-nuptial agreement in the event of a breakdown of the marriage.
If you are someone who simply wants certainty, then it can be helpful to use the term ‘insurance policy’ when raising the topic with your partner. If the pre-nuptial agreement’s aim is one of fairness and it ensures a financial safety net for the financially weaker party (perhaps in the form of providing a home or income support), then suggesting a mechanism for a clear division of assets on divorce can be a huge advantage.
Marriage preparation classes should be more common in the non-religious sphere. Even for those couples not entering into a pre-nuptial agreement, marriage preparation classes can be extremely useful to encourage discussions about topics that often do not crop up in everyday life and yet are sometimes the source of the breakdown of a relationship, such as managing money, views on having and/or raising children and aspirations and goals of each person in their future. Our in house therapist, Jo Harrison, details the importance of this type of support for couples, to build the foundations for their future, in her blog entitled ‘How to take the stress out of pre-nuptial agreements’.
Can my fiancé and I use the same solicitor?
The short answer is “no” because it is one of the requirements for a pre-nuptial agreement to be considered to be legally binding that each party should take independent legal advice. You may worry about involving solicitors but negotiating a pre-nuptial agreement with solicitors involved does not have to be an acrimonious power and greed driven process that is commonly portrayed in films and on TV.
Although it is not possible for a couple to instruct the same solicitor, it is quite possible for a couple to sit around a table with their solicitors and discuss their aspirations for a pre-nuptial agreement in a transparent and amicable way. All the discussions take place in the form of meetings with the solicitors and clients present. There are no endless letters going back and forth, and the terms of the draft agreement are discussed only in face to face meetings with both the couple and their lawyers present. Each person can share their concerns or if they do not feel comfortable doing so, it is the role of the lawyer to support and share those concerns on their client’s behalf.
By using the collaborative process to prepare pre-nuptial agreements, clients feel supported by their solicitor but also empowered by a transparent and amicable process. This is also a more rewarding process for the legal teams since they are working together as colleagues and finding a solution that works for the couple. Often the whole process can be wrapped up in only a few meetings.
In summary, preparation is key if you are considering a pre-nuptial agreement. Please do get in touch if you would like to discuss your options in more detail and we hope we can support you and your fiancé through a more amicable way of achieving financial certainty.
This blog has been written by Family Law in Partnership senior associate Charlotte Symes. Charlotte is a solicitor, collaborative practitioner and mediator. She has extensive experience of advising on family law matters involving international aspects. Contact Charlotte at T: +44 (0)20 7420 5000 or E: firstname.lastname@example.org
If you would like to learn more about pre-nuptial agreements, please contact any of our expert family lawyers or visit our dedicated website page here.