Pre- and Post-nuptial agreements

Prenuptial agreements, or "prenups," are on the rise among millennials and it isn't for the reasons you might think.

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22 Feb 2018

Pre- and Post-nuptial agreements

Prenups More Popular With Millennials

Prenuptial agreements, or "prenups," are on the rise among millennials and it isn't for the reasons you might think.

Historically, prenups have not been very popular; however, recent research has shown that they've seen an increase in popularity among millennials with more women in particular asking for them and it isn't for the reasons you might think.

Firstly, on average, people are getting married later or marrying for the 2nd or even 3rd time, so it can be important to protect previously acquired assets. Secondly, we're more exposed to divorce than ever before with 42% of marriages failing.

So, if you are thinking of getting married, then it important to consider the financial implications if the relationship should fail.

What is a pre nuptial agreement?

It is a legal agreement entered into prior to the marriage setting out how the couple intend their assets to be divided if they subsequently separate or divorce.

What can it do for me?

  • It can protect previously acquired wealth or inheritance (non matrimonial property), for example family business interests etc.
  • It can give certainly in allowing you to plan how the assets would be divided if the relationship were to fail and so saving money on costly litigation
  • It clarifies how finances are dealt with during the marriage giving transparency

Will it be binding?

Currently they are not legally binding. In divorce proceedings, the court can still has override the pre-nuptial agreement when considering how to share the assets and income of a marriage. However, the court must  consider the pre nuptial agreement as one of the ‘circumstances of the case’ along with all the other factors set out in s25 of the Matrimonial Causes Act 1973 which determine the division of assets on divorce.

In 2010, in the landmark case Radmacher v Granatino the Supreme Court considered pre nuptial agreements. The court said that if a nuptial agreement had been freely entered into by both parties, with full appreciation of its implications, then they should be held to it unless it would not be fair to do so.

In order to be fair:

  • The agreement must be freely entered into without any duress, fraud, misrepresentation or one party exerting their dominant position over the other
  • The parties must have a full appreciation of the implications, and whilst full and frank disclosure of finances is desirable, it is not essential if the party is aware of the full implications
  • It must be fair to hold the parties to the agreement in the circumstances. It may not be fair for example if it prejudices a child of the family.

In order to determine whether fairness, the court will consider the parties' needs,compensation and sharing of assets.

If the pre nuptial agreement provides that assets be shared in a way that meets those criteria, then it is more likely that the court will uphold it in the event of a dispute. However if one party is left in need whilst the other is comfortably well off, it is unlikely to be seen as fair.

The Law Commission have been examining this difficult area of law since 2009.Their final report was published in 2014 together with a draft Bill. They propose that in future a nuptial agreement should be legally binding if it meets both parties’ financial needs and those of any children and complies with the following criteria:

  • Valid - It must be contractually valid
  • Formation - It must be validly executed as a deed
  • Timing - It must not have been made within 28 days prior to the marriage
  • Disclosure - Both parties must have received disclosure of material information about the other party’s situation when they entered into the agreement
  • Legal advice- Both parties must have received legal advice at the time they entered into the agreement

This article provides an overview and is not intended to replace specific individual advice. Each situation is different and needs expert advice based on your particular circumstances.

For an initial discussion and more detailed advice contact:

Janice Leyland on 01905 727700 or email jleyland@scaiff.co.uk.

Members: Simon Shaw, Elizabeth Rimell.
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