“Will you marry me?”
“I’m so excited darling”.
“You have made me the happiest person in the world”!
“Just one thing sweetheart, before we tie the knot, would you mind signing a legal contract saying that if we get a divorce, you won’t try to claim any of my money”?
Whilst it may not be the most idealistic or romantic start to married life, prenuptial agreements have become an essential part of preparing for a modern marriage or partnership. Love them or loath them, there is no doubt that prenuptial agreements suffer from what I call the “marmite effect”. Some people see them as an essential part of getting married and starting a family together in a sensible manner but others see them as distasteful example of how we have moved away from romantic ideals of love and lifetime commitments towards a more pragmatic approach to relationships.
People associate prenuptial agreements with the world of celebrity and the lifestyles of the rich and famous but this is no longer the case. More and more, prenuptial agreements are being used by ordinary individuals to help prevent costly, lengthy and hostile battles at court if the relationship comes to an end.
What is a prenuptial agreement?
A prenuptial agreement is a contract entered into before marriage which outlines how a couple wish to divide their money and property should the marriage end in divorce.
Divorce has become commonplace in society today and as a result, the number of prenuptial agreements and their significance has also increased. I tell all my friends, family and colleagues who are considering tying the knot to carefully mull over the concept of a prenuptial agreement before they say the big “I do”.
Are prenuptial agreements binding in the UK?
Common misconceptions about prenuptial agreements mean that many people do not understand how they work and how to go about entering into one. As a result, many are skeptical about using prenuptial agreements.
It is a widely held view that prenuptial agreements are not worth the paper that they are printed on. People see them as ‘useless’ as they do not bind a Judge, who is entitled to overrule them and make any type of financial settlement that s/he deems suitable following divorce.
If this is true, then why do we even have them? Are they binding and enforceable? They appear to be valid contracts – What is the true position here?
The truth is that although prenuptial agreements are not binding on a court of law (i.e. the court does not have to follow the exact content of the agreement), they are still used by Judges and Courts when deciding what type of financial settlement or order to make upon divorce.
As a matter of fact as time has gone by, prenuptial agreements are being given more weight in divorce/separation proceedings. Judges now view these agreements as a useful indicator of the couple’s intentions at the time they entered into their relationship. I always advise my clients that when deciding who gets what, the courts will consider a range of factors such as the income and earning capacity of each party, their individual needs and lifestyle, the number of children and more.
If the prenuptial agreement is valid and was entered into properly, it is likely that the Courts will use it or at the very least follow it as a guide to what type of financial settlement to make. Therefore, it is arguable that prenuptial agreements are now essential for your financial security.
But bear in mind that the courts will always have the final say when deciding upon financial settlement in divorce cases. This is why it is important to seek independent legal advice when entering into a prenuptial agreement.
What are the advantages of prenuptial agreements?
It is worth looking at the advantages of prenuptial agreements and how they can benefit you.
- Prenuptials encourage parties to discuss finances from the outset and can help resolve financial issues before the marriage has started.
- Prenuptial agreements are also a good way of protecting family assets or property acquired before the marriage.
- They can also help provide financial security if there are children from previous relationships or marriages. As long as such provisions are fair, they will be upheld by the court.
- Prenuptial agreements can also save time and costs. Having a prenuptial agreement which is valid and fair will help avoid long financial settlement proceedings, thus saving legal fees and expenses, tension and heartache.
What are the downfalls of prenuptial agreements?
- One of the disadvantages of having a prenuptial agreement is that vulnerable parties may not benefit as much from these agreements as during negotiations, they may allow themselves to be forcefully persuaded or cajoled into agreeing something that is not in their best interests. This is why it is important to seek independent legal advice before signing such an agreement, to ensure that you can receive the best possible outcome if your marriage breaks down.
- Another point to consider is that as the marriage progresses, key factors may change. For example the parties may have had children together or the income of the parties may have changed dramatically. In these cases the prenuptial may no longer reflect the current positions of the parties and becomes outdated. Therefore it is important to instruct solicitors to draft prenuptial agreements to ensure that these possibilities are accounted for in the prenuptial.
Overall as the attitude towards marriage and divorce has evolved, so has the attitude towards prenuptial agreements changed.
Asking for a prenuptial agreement is no longer taboo. People are more comfortable discussing finances and the possibility of divorce and many agree that given the potentially life changing nature of a divorce, it is sensible to prepare for such an event. The courts are giving more consideration to prenuptial agreements when making financial orders.
Prenuptial agreements have also become more popular as people seek to retain control over their own finances. The Courts will always try to ensure the financial outcome of a divorce is fair for both parties but having a valid prenuptial agreement means that you can achieve a fair outcome, faster, with less hassle and on your own terms.
No one likes to be pessimistic when entering into a long term relationship or a marriage but it may be better to be financially safe than sorry. These discussions may be embarrassing to begin as most people are romantic at heart and want their relationships to last. They do not want to consider financial arrangements when they are falling in love. Divorce is probably the last thing on their mind. They may resent the very idea of reducing their feelings onto a piece of paper.
To some extent, I agree with them.
Affairs of the heart cannot be governed by contracts. Falling in and out of love will not depend on the content of a contract. But for those who have been married, they will tell you that love, although an essential ingredient is not the only factor in building a successful marriage. Prenuptial agreements however can control and govern all of those other more material factors, leaving you to concentrate on falling in love and building a life together.
Now that is actually very very romantic..
Family Law Department
Saracens Family Law Solicitors