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Let's face it: when you are about to get married or register your civil partnership, the very last thing on your mind is going to be what will happen if your relationship breaks down. The fact that you are reading this at all means that you have thought about the possibility, however remote, of things not working out between you and your partner and you want to make fair provision for both of you.
The first point to make is that a prenuptial agreement is not enforceable under the law of England and Wales. Why, you might ask yourself now, bother to make one at all?
Here is why:
There is a growing movement towards the recognition of prenuptial agreements as one of the factors to be taken into consideration when dealing with financial issues upon the dissolution of a marriage or a civil partnership. The agreement will not be binding on a judge or on you but it will be considered when weighing all the relevant factors.
In some European countries and of course in the USA and other countries pre nuptial agreements are enforceable, even though they remain unenforceable in the UK. Family lawyers are urging people to consider pre nuptial agreements despite their unenforceability because they can provide useful information and evidence of the parties’ intentions.And of course the court proceedings for dissolution may be in a country where prenuptial agreements are recognised.
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A well drafted prenuptial agreement can be very useful and the Courts are more and more willing not merely to take them into account as one of the factors to consider, but even to respect the parties’ wishes as evidenced by them, as long as those wishes represent a fair settlement in the circumstances that pertain at the time of the breakdown of the marriage or dissolution of the civil partnership. A prenuptial agreement is not one of the named factors in Section 25 of the Matrimonial Causes Act 1973 but it does come within the umbrella of all other circumstances to be taken into account.
It is unlikely that English law will ever change to such an extent that a prenuptial agreement will be enforced per se by the Courts. However,a prenuptial agreement has a greater and greater chance of being factored in, when dealing with a financial settlement, as one of the most relevant considerations.
The power of a prenuptial agreement is enhanced particularly when both parties have the opportunity for independent legal advice and this is vital.
In a prenuptial agreement you can cover whatever issues you like, but the main areas to cover will be:
- Where you will live and what should happen to the matrimonial home in the event of the breakdown of the marriage.
- What would happen to any other assets that you might own at the outset of a relationship.
- What would happen to any assets you acquire during the course of the marriage.
- How bills are to be paid.
- What happens on death.
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Obviously whatever the provision in the prenuptial agreement with regard to death should be reflected in any Will. Married people have an obligation to make “reasonable provision” for each other under the terms of their Wills. A spouse can contest a Will if he or she does not receive “reasonable provision”, under the terms of the Inheritance (Provision for Family and Dependants) Act 1975. What is reasonable provision for a couple who have been married say for 2 years may be unreasonable for a couple who have been married for 20 years. For this reason, it is as well to keep the terms of your Will under review on a regular basis anyway.
If you have been married before or you have children from a previous relationship, or if there are substantial assets that you want to try to protect, then you may feel that a prenuptial agreement would be a sensible idea. Whatever your reasons, then a discussion with one of our family solicitors - Melanie Grant or Julia Weber - may help you to decide whether this is something you wish to pursue.
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