In the days leading up to a wedding there are fewer statements less romantic that asking your betrothed to take some independent legal advice about a prenup.
No one wants to think about separating before they are married, but the reality is relationships do break down and pre-nuptial agreements (or prenups) are increasingly becoming a feature of modern marriages and civil partnerships.
It can be tempting to concentrate on the dress and the party, but marriage is a contract and a contract that confers significant rights on your intended. If a marriage or civil partnership does breakdown, then those without a prenup run the risk of years of protracted litigation over the marital estate. If you have significant assets before you marry, or perhaps you want to ensure existing children are looked after no matter what, then a prenup might be worth considering.
A prenup allows couples to have a degree of self-regulation over their affairs and set out from the outset what will happen if they separate. It isn’t about trying to make sure your new spouse doesn’t get anything. On the contrary, it must be fair from the outset to be valid, and it allows parties to decide on what is fair for themselves.
Historically prenups have not been recognised in the UK, but in 2010 the landscape changed. Although prenups are not legally binding the case of Radmacher v Granatino set the precedent that prenups should be upheld if they are not unfair.
In 2014 the Law Commission recommended that prenups should be legally binding. That hasn’t happened yet, but the smart money is on that being a matter of time. So where does that leave us today.
As long as certain condition are met, then the current view is that prenups should be upheld. If no prenup is in place, then the starting point is a 50/50 split of assets. With that in mind, taking some legal advice before you get married might save a lot of heartache in the future.
So what are the conditions that need to be met and what is fair anyway?
What you should consider:
The prenup conversation might be a tricky one, but it is a lot easier agreeing what is fair while you are still enjoying the best of times, rather than when you are in the worst of times.
And the very best result after drafting a prenup? When they never have to be used.
It is not only advisable to take legal advice when preparing a prenup, but it is necessary for both people to obtain independent legal advice on the fairness of the agreement if you want it to stand up in an English Court.
Filed Under: Insight