Will a prenup affect my relationship?
While many of us are familiar with the idea of a prenuptial agreement, there are some misconceptions about what it actually means for your marriage.
David Cobern, director and specialist in the rights of unmarried couples from the Family Law Company in Devon, debunks some common myths surrounding prenuptial agreements and addresses your concerns.
Q: What does a prenuptial agreement entail?
Prenuptial agreements are primarily used to ensure that money, property and other assets each party brings to the marriage stays with that individual party if the couple later divorce. Agreements are also used to pre-determine the amount and form of any future financial settlement for either or both parties, including for their children.
Q: I’m worried a prenuptial agreement might affect my relationship, what would you advise?
It is important to remember that prenups are not about being unfair. Most agreements are aimed at avoiding the cost and uncertainty of a divorce in the early years of a marriage where one party has contributed the major share of the assets. Others are intended to permit an older partner to preserve and pass assets to existing dependents.
It is important to share your thoughts, provide information openly and allow each other time to reflect.
Broadly, there are two groups of people who consider prenups; young couples, where one or both individuals may have assets that they wish to protect (e.g. family property, trust interests etc.) and older couples, previously separated with assets of their own and dependents they wish to provide for.
Good prenups have review clauses built in for future events such as the birth of children, ill health and more. This will provide reassurance and ensures that the arrangements will be reviewed as circumstances change.
Generally, I find that older couples are pretty pragmatic about these agreements, while younger couples find it harder to secure a prenup with the romance of a pending wedding. In that circumstance, older relatives (including those who have provided the assets to be protected) can help manage the situation sensitively and smooth the way for an agreement to be reached.
Q: My partner and I do not have substantial assets, so do we need a prenup?
A prenuptial agreement must meet the needs of each party and any dependent children. How much difference a prenup will make to a couple with modest assets or children is, therefore, more limited.
However, it’s becoming more popular to make one as the courts are more prepared to follow properly drafted and reasonable prenups.
Prenups are also used in situations that are specific to a couple, such as preserving a particular asset that is anticipated (such as an inheritance or trust interest) or an investment by one party in property brought into the marriage by the other.
I have prepared agreements that define how and when the parties’ property investment will be repaid on a future divorce and establishing income provision for a disadvantaged partner until it is. Personal belongings such as valuable heirlooms, pieces of art and entrepreneurial ideas and inventions can be included, and even cats and dogs.
Q: Is a prenuptial agreement legally binding in court?
The courts retain jurisdiction to decide what a fair divorce settlement is, based on the circumstances of the couple at the time. A properly drafted prenup can have a very significant bearing on the judgement and in some cases can conclusively determine the outcome.
To stand up before the courts, a prenup must comply with certain requirements:
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It must be negotiated and signed well in advance of the wedding, particularly if it’s a big wedding that’s planned and booked months in advance. Ideally, the ink should be dry no less than six weeks before the ceremony.
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Neither party must be put under pressure to sign.
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Each party must take advice or sign to say that they know they can, should they wish, but have declined to do so.
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Each party must disclose their financial circumstances to the other.
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The agreement must meet the needs of each party and any children on divorce.
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Agreements are only valid for a certain period after they are signed, so if you have a prenup, but postponed your wedding during Covid-19, you may have to re-sign.
Director and family lawyer David Cobern and his team are highly experienced in providing legal advice for unmarried couples including prenuptial agreements.
Visit thefamilylawco.co.uk/service/prenuptial-agreements/ for more information. Alternatively, contact 01392 421777 to speak to a member of the team.
