By Alison Green, Head of Family and Relationship Team at Mackrell LLP
To some, it may seem a cliché, but there’s a long-held tradition for couples to get engaged on or near Christmas.
What better way to confirm your commitment to each other than by making that all-important promise to be together for life, starting the journey towards marriage or civil partnership?
A previous study by Bridebook revealed that more than 100,000 engagements may happen over the Christmas season in the UK.
Their survey found that 40 per cent of UK engagements occur between Christmas Eve and Valentine’s Day, with half of them taking place between December 21 and New Year’s Eve.
While newly engaged couples are often preoccupied with wedding plans, many overlook one of the most practical and thoughtful engagement gifts they could give each other – a pre-nuptial agreement (prenup).
Although it may not sound very romantic, creating a prenup can provide both partners with the confidence and peace of mind they need as they prepare to marry.
What is a pre-nuptial agreement?
A pre-nuptial agreement is a legal document signed by both parties before they marry, outlining how assets, such as property, savings, debts and inheritance should be divided in the event of a divorce. It cannot be used to dictate child arrangements, or child support .
It is important that the agreement that is reached is fair, transparent and free from coercion for it to be considered and upheld by courts. That is why it is important that both parties seek independent legal advice during the process of negotiating a prenup.
While it’s often perceived as a safety net, a prenup is generally an effective way to protect individual assets brought into the marriage.
For those entering a second marriage or having significant assets or business interests, a prenup can also help safeguard a family inheritance or business succession for children from previous relationships.
Is a prenup legally binding?
In England and Wales, a pre-nuptial agreement is not automatically legally binding – this means there is no legislation in place which deals with pre-nups. However, they are generally enforceable under certain circumstances.
The courts will often give weight to a well-drafted and fair prenup, especially when both parties were entering into the agreement voluntarily.
This principle was established in the landmark Supreme Court decision in Radmacher v Granatino (2010), which found that a court should give weight to a prenup that has freely been entered into by each party, with a full appreciation of its implications, unless it would be unfair to hold them to their agreement at the time of the divorce.
The reason pre-nups aren’t automatically binding is that the courts want to ensure fairness at the time of divorce or separation, taking into account any changes in circumstances, such as children, health or financial needs.
Under the Matrimonial Causes Act 1973 courts have broad discretion to make financial orders to ensure a fair outcome.
If a pre-nup is deemed to be unfair or unjust at the time of separation, the courts have the discretion to override it.
That said, the clearer and fairer the terms of the prenup, the more likely it is to be enforced.
Why should couples consider a prenup?
Although it may seem uncomfortable to talk about finances before you’ve even walked down the aisle, a prenup can actually enhance trust and security within a relationship.
It’s not about preparing for failure, but rather, it’s about ensuring that both partners are on the same page when it comes to their financial futures.
Creating a prenup before getting married can be a valuable exercise in communication and transparency, offering a couple the chance to have an open and honest conversation about their finances and expectations for the future.
For many, this provides peace of mind, knowing that both partners are clear about their individual assets and future entitlements.
A prenup also helps couples avoid costly and drawn-out legal battles should the marriage end in separation.
With a prenup in place, couples can have the confidence that the financial side of the divorce or separation will be handled more efficiently, with less dispute.
Putting a prenup in place
While a pre-nuptial agreement may not be the most romantic gift you can give your partner, it can be one of the most practical and thoughtful.
By setting the stage for clarity and security before the marriage begins, couples can enter into their marriage with a sense of confidence, knowing that their finances and assets are protected, and that any potential disputes will be dealt with fairly and equitably.
If you’re newly engaged and considering a prenup, it’s worth discussing with a family law expert who can guide you through the process, ensuring that your agreement is fair, legally sound and tailored to your needs.
To find out how we can help you prepare a prenup, please speak to our family and relationship team today by getting in touch.
