Couples planning to marry or enter a civil partnership may want an agreement that sets out what they intend to happen to their money and property if the marriage or civil partnership breaks down.
In England and Wales, prenuptial agreements are not strictly binding in the event of a divorce, but the terms of the agreement may be decisive in the event of a dispute that the court deals with unless the effect of the agreement would be unfair.
There are several reasons to enter into a prenuptial agreement, even if you do not have significant pre-marital assets to protect.
A prenuptial agreement should be considered if there are certain assets that you would like to ring-fence before getting married or entering a civil partnership.
You may want to enter into a prenuptial agreement for the following reasons:
The above is not an exhaustive list.
A prenuptial agreement is a bespoke document and is tailored to your circumstances. A well-drafted prenuptial agreement will help to provide clarity so that you and your partner make it clear to one another that certain property belongs to you alone and that it will not be shared in any future divorce.
There are certain things that couples usually include within a prenuptial agreement, including, but not limited to:
Again, the above is not an exhaustive list.
It is important to ensure that a nuptial agreement remains fair and meets the needs of the parties. Therefore, it is prudent to review its terms if particular events happen or after certain periods of time have passed. If a nuptial agreement is not reviewed and significant changes in the parties' circumstances occur, the court is unlikely to uphold its terms in any later financial remedy proceedings.
Formulating a list to include every type of event that should result in a variation of the terms of a nuptial agreement is difficult, but the following possibilities are commonly accepted as triggering events:
Implementing a review clause should reduce the possibility of the nuptial agreement being deemed unfair by the court in later financial remedy proceedings as it shows the parties have considered the change in circumstance, have renegotiated the original agreement accordingly and believe the varied agreement is fair. A review clause is particularly important in the case of a young couple who potentially have many life changes ahead.
A prenuptial agreement can give more certainty as to the financial arrangements if you separate and a review clause should reduce the possibility of the nuptial agreement being challenged at a later date.
Both parties will need independent legal advice on the agreement, and they will need to disclose to one another information about their assets, liabilities, and income.
It is good practice to finalise the agreement in good time before the wedding or civil partnership ceremony (at least six weeks) so that both parties have sufficient time to consider the terms of the agreement.
If you are planning to marry or enter a civil partnership and you want to ensure that certain assets are protected from claims for financial provision on divorce or dissolution. If you have any more questions or would like more information, you can contact our Family Law Team below.
