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Should I get a pre-nup? All of your nuptial agreement questions answered

View profile for Charlotte Coyle
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A nuptial agreement can help you and your partner agree in advance which assets should be part of your “separate” or “marital” property.

Should I get a pre-nup?

You can enter into a nuptial agreement both before and after you marry. Post-nuptial agreements have the same effect as pre-nuptial agreements. As to whether you should enter into an agreement before or after your marriage, this will depend on timing, the extent of negotiations likely to be required and the potential consequences if you are not able to reach an agreement.

You might have inherited assets, family heirlooms; an interest in a family business or in your own business; or property acquired before your marriage. It may not be your first marriage or you may wish to protect the inheritance of your children or other dependants.

When couples divorce arguments over their finances can be a very bitter and hard fought. Agreeing the value and division of marital property can be difficult enough, but what if you cannot agree which assets fall within the “marital pot”?

A nuptial agreement can help you and your partner agree in advance which assets should be part of your “separate” or “marital” property. Essentially, “separate” property can be ring-fenced in order to ensure that, so far as possible, it is not subject to division or sharing in the event of divorce.

Are nuptial agreements standard documents?

Although solicitors will often use precedent documents as a starting point nuptial agreements are entirely bespoke. The agreement should set out agreed financial provisions in the event of divorce.

It is very important that any agreement is ‘fair’ in the circumstances at the time of divorce. What is ‘fair’ will very much depend on the couple and the assets involved.

Can you agree that what you each bring into the marriage is yours and what you generate together is shared?

It depends. Nuptial agreements are not legally binding. In order to be upheld the effect of the agreement must be fair. It may be that the agreement will need to provide for the wealthier party to pay the economically weaker party a sum or sums of money in order to meet their needs and the needs of any children in the event of divorce. There are likely to be many variations of what will or will not work for the couple (and any children) involved. 

Will a nuptial agreement affect my relationship?

Lots of people find it very difficult to talk about their financial affairs and to make plans for what they hope will be a worst case scenario. Ideally, open and informed discussions will help to improve communication, provide clarity and increase trust.

Are nuptial agreements legally binding?

Although it will not be legally binding a nuptial agreement will have significant weight and will be given effect if:

  • it is freely entered into by each party;

  • with a full appreciation of its implications;
  • unless in the circumstances at the time of divorce or separation it would not be fair to hold the parties to their agreement.

“Freely entered into”, what does this mean? 

You must enter into a nuptial agreement of your own free will, free of pressure and having negotiated the agreement on an equal footing.

Understanding the implications of a nuptial agreement, how is this achieved?

You should each provide details of your financial position, including documents if required. You should also each obtain independent legal advice.

How do you know whether a nuptial agreement is fair?

This will depend on the circumstances of the couple and the assets involved. There is nothing inherently unfair about ring-fencing property, including pre-marital and family wealth.

Instead, what is fundamental is that a nuptial agreement does not prejudice the rights of children, that it remains relevant and that its provisions continue to meet the parties’ needs.

How do you make sure that a nuptial agreement remains relevant?

Although an agreement cannot cater for “unknown unknowns” it may be possible to make provisions for specific future circumstances in a nuptial agreement. These may relate to the length of the marriage and the birth of children. 

Ideally, a nuptial agreement will include a review clause linked to trigger events which will help to remind you to review agreement so that it continues to suit and to meet your needs. 

Goodman Derrick – Family

Our London based Family law team guide our clients through the legal process so as to minimise the financial costs and to achieve the best possible outcome, the group:

  • provides legal advice and support for divorce and separation
  • specialises in the resolution of financial issues arising through a relationship breakdown
  • drafts and negotiates cohabitation agreements and pre and post-nuptial agreements
  • focuses on child arrangements and UK and international surrogacy and parental order applications

Goodman Derrick LLP - A London law firm focused on delivering an exceptional service to ambitious businesses and entrepreneurs.

More information

This guide is for general information and interest only and should not be relied upon as providing specific legal advice. If you require any further information about the issues raised in this article please contact the author or call 0207 404 0606 and ask to speak to your usual Goodman Derrick contact.