Darling, before we get married, we ought to…

We’ve all heard people talk about how life was some simple, years ago.  People got married and stayed married, we’re told.

It sounds convincing, but it’s not the full picture.  People have always embarked upon second marriages, whether following divorce or bereavement.  And there’s nothing to prevent people from different financial backgrounds from falling in love.

So what can you, or should you do, to protect yourself, if you are marrying someone with a very different financial background to yourself?  Or someone with a very different attitude towards money?  Perhaps you have been widowed, and want to protect the assets you acquired with your first husband.  Or perhaps you received a large inheritance, and want to protect this for your children and grandchild, should you and your new spouse separate in the future.

Whatever your reasons, more and more people are thinking seriously about making a financial agreement before they get married.

A nuptial agreement is an agreement which parties to a marriage make, to set out what should happen to their financial assets, if the marriage should come to an end.  Although the agreement is usually made before the marriage (a pre-nuptial agreement), it can also be made during the marriage (a post-nuptial agreement).

The question of whether the court will give effect to the nuptial agreement will only be tested if the couple split up, and ask a court to determine their financial arrangements.  That may be many years in the future.  The parties hope it will never happen, but they are prepared in case it does.

Will the court take the nuptial agreement into account?

The best answer we can give is “probably, but…”.  That is, there is no absolute guarantee but, so long as the necessary formalities are carried out, it is very likely.

What should I be aware of?

The court will not follow the terms of the nuptial agreement if it would not be “fair” in the circumstances.  You cannot agree to leave your spouse destitute.

The parties must have entered into the agreement freely.  And they must have had a full understanding of the implications of the agreement.  As a general rule, the parties must have told each other all about their financial situation.  They should both have legal advice, and this should be separate advice for each party.

There should be no undue pressure from one party to the other.  For this reason, you are advised to allow some time between signing the agreement and the marriage itself.  A general rule is that this should be at least three weeks.

Nothing in the agreement will be upheld if it will prejudice the reasonable requirements of any children of the family. Just as you may need to revisit the terms of your Will, as your life changes over the years, so you may need to reconsider the terms of any nuptial agreement.

If you wish to discuss whether a nuptial agreement is for you, or if you wish to revisit and update an existing nuptial agreement, we offer a free no-obligation 30-minute consultation.

Please get in touch with Ruth Jackson or another member of the family law team at Forrester Sylvester Mackett on 01249 444300.

Ruth Jackson, a barrister specialising in family law, has prepared a series of articles covering answers to some of the most common problems in family law.  We hope that these will help you with some of the common problems which barristers and solicitors see in practice. 

Of course, there are limits to what we can do on a website. We cannot give specific advice in such articles, and you should take your own legal advice before relying on what is written. 

 If you wish to consult us about your problem, we offer a free 30-minute, no obligation, appointment. 

The contents of this article are for the purposes of general awareness only. They do not constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.

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