We have been hearing a lot in recent days about the breakdown of a high profile American marriage and lots of questions have been asked about why the couple did not enter into a Pre-Nuptial Agreement with each other (more commonly known as simply a Pre-Nup).
Of course, I’m not sure that we will ever be privy to the details about why the couple did not instruct lawyers once they got engaged, but I’m often told a Pre-Nup isn’t a romantic gesture!
Here in England Pre-Nups are beginning to get more publicity and becoming more popular with engaged couples. I may be consulted about a Pre-Nup when one partner is bringing inherited or unequal wealth to the marriage. Although they are gaining in popularity, unlike in America and parts of Europe, a Pre-Nup is not always upheld by a judge if there is a divorce.
So, what is a Pre-Nuptial Agreement?
A Pre-Nuptial agreement is a written agreement which you and your partner enter into before your marriage, setting out the division of your assets in the event that you divorce at some time in the future.
It is hoped that you will never need to rely on this document and rather it is put in place “just in case” the marriage was to come to an end.
It is perhaps because a Pre-Nup is only needed if the marriage were to end, that they are thought of in more negative terms – why have an agreement when you set out to stay with someone “til death us do part”?
But sadly, the Office of National Statistics reports 108,421 couples divorced in 2019.
My advice is that it may be better to have an agreement in place and never need it, than not have one and wish you did.
Will the courts in England and Wales uphold the Pre-Nuptial Agreement?
At the time of writing there is no guarantee that your Pre-Nup would be upheld by a judge. But, if you do decide to enter into one with your partner, then an agreement is more likely to be upheld if:
- There was no undue pressure on either party to enter into the agreement;
- Both parties knew the financial position of the other and there was financial disclosure;
- Both parties took, or had the opportunity to take, their own independent legal advice;
- Both parties confirmed that they understood the effect the agreement would have for them; and
- There was provision for the agreement to be reviewed if a child is born or if there is a significant change in financial circumstances.
These are basic requirements. But they are not the only requirements to consider; for example, the court will not uphold an agreement if one of the parties would be left impoverished because of it.
If you are considering entering into a Pre-Nup with your partner, then you should discuss with your Solicitor what requirements will be needed to make it more likely to be upheld by a judge. We offer an initial 30 minute free appointment to new clients who would like to discuss entering into a Pre-Nup Agreement.
To book an appointment or for further information please contact Lucy Buttle on 01249 444300.