Most preparations for a wedding are fun and something you will always remember. Whether it is a playlist for the DJ, deciding on the song for your first dance, checking out venues, trying on dresses, buying the rings or testing the menu, it will take time but will fill you with even greater anticipation for the big day. So, you don’t want to cast a shadow over all of that by falling out with your fiancé over a pre-nuptial agreement, but it remains a very sticky subject, despite a massive rise in popularity in recent years. The reality is that 42% of marriages in the UK end in divorce, according to the Office of National Statistics (ONS). A properly prepared, witnessed and recorded pre-nup drawn up by those couples before they walk down the aisle can help make the transition smoother and less emotionally charged if they decide to go their own ways.
First things first… what is a prenuptial agreement?
A pre-nup is a bit like life insurance or a will – or taking an umbrella with you on a day out in case it rains. It is there “just in case”. It sets out what you want to happen to your assets in the event of a legal split from your partner. This can record that joint assets, for example any property bought during the marriage, will be split 50/50, but often also safeguards assets you take into a union. That may be personal savings or property or that lovely collection of stamps you inherited off your grandad that has been in the attic for years but bound to be worth something. Discussing this before getting hitched could be the lesser of two evils, though still not the thing that you want to bring up after discussing flower choices for the ceremony. A prenuptial agreement must be entered into freely by both parties, both must take professional advice and it must be properly drawn up by a solicitor. While still not absolutely binding under English law, prenuptial agreements are taken seriously in divorce, provided they are drawn up correctly. They are commonplace the world over and are not just relevant to the rich and famous, though celebrity splits can help us give some context. So, for instance, Britney Spears had a pre-nup, worth an estimated $120 million, which meant her ex-husband got just £1 million when they split. Conversely, Paul McCartney had no pre-nup and had to give Heather Mills £24.3 million when they divorced (from his £800 million fortune). What percentage of your wealth are you willing to happily hand over to your partner rather than sort out the paperwork in advance?
Tips on how to have that awkward conversation about a prenup
It is never going to be easy, but you could lay the groundwork by saying something like: If our marriage did break down – would you be happy that I would get a share of any inheritance, lottery win or property that you own? How would you want us to split things if things don’t work out?Family law solicitors have seen the number of enquiries about pre-nups rising in recent years, which suggests they are becoming less of a taboo, but not all of these convert into couples willing to go through with the process.
Making your agreement binding
For an agreement to be properly considered by a court on a divorce, prenuptial agreements need to adhere to certain criteria. Recent case law has determined that where the criteria has been properly followed, the document can carry significant weight. The agreement should be entered into by both parties without any undue pressure from each other or a third party. Any evidence to the contrary will damage its credibility. It should be discussed and drawn up as far in advance of the wedding as possible and finalised at least 28 days before the big day. Yes, there is a lot else to sort out, but it is worth it in the long run just in case. You don’t take out house insurance because you think your house is going to catch fire, but it’s reassuring to have it. If the document is called into action, the court will consider individual circumstances such as you and your partner’s age, maturity, previous experience of long-term relationships and both of your emotional states at the time of the agreement. You should both fully understand the implications of what is drawn up before signing it. Taking advice from a family law solicitor is the best way to do this.
Also, don’t forget to consider the impact of the agreement of any children. You may not have any children at the time of negotiation, but allowances can be made. Any agreement can be updated at a later date, in fact regular reviews are essential to take account of any changes in your personal circumstances.
