Is a prenup part of your wedding planning?

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The benefits and importance explained

Hotels and wedding venues are busy hosting wedding fairs and gearing up for the wedding season, with everyone focused on the details of the big day, from the colour scheme and menu to the choice of attendants and music. One other thing which now appears on a wedding checklist is discussion of a prenuptial agreement, especially when it is a second marriage, if there are business interests, or where the ‘Bank of Mum & Dad’ is helping with a deposit for a property.

Nobody plans a wedding with separation in mind, but according to the Office for National Statistics, in 2021 the most common duration of marriage for opposite-sex couples was 8 years, for male same-sex couples it was 5 years; and for female same-sex couples it was 4 years.

A prenuptial agreement provides a form of protection if the marriage does not last and it lets couples decide in advance how their property and assets should be divided if they separate. However, it needs to be drawn up carefully and should not be rushed into at the last minute.

This form of agreement is a useful tool for providing certainty for the couple as they embark on their married life. It can be particularly beneficial if any assets would be difficult to divide 50/50; if you want to ensure children from a previous relationship are provided for; if you want to protect business assets or inherited wealth;or you do not want to be responsible for the other partner’s outstanding debts.

Since the Supreme Court’s landmark decision in Radmacher v Granatino, prenuptial agreements can now be given significant weight under UK law, and will be enforceable provided certain conditions are met. Courts can still disregard them if they are felt to be unfair – for example, if the children of a marriage are likely to suffer if the terms of the prenuptial agreement are upheld.

In deciding what is fair, the court will apply the three-stage test set out in Radmacher. This means:

  • the agreement must be freely entered into;
  • the parties must totally understand the implications of the agreement they are entering into;
  • the prevailing circumstances must be contemplated when assessing whether it is fair to hold the parties to their agreement.

It is crucial to consult a specialist family lawyer before you sign a pre-nuptial agreement. They can make sure that all the legalities of a prenuptial agreement are observed, such as ensuring that:

  • both parties have obtained legal advice from different lawyers (to avoid any question of a conflict of interest) before the agreement is made;
  • all the terms of the agreement and their implications are understood;
  • the agreement is entered into by both parties without duress;
  • the terms of the agreement comply with the Radmacher test;
  • both parties make full disclosure of all their assets; and
  • the agreement is signed at least 21 days before the wedding.

It is completely up to you and your future spouse what terms are written into the prenuptial agreement, but could include clauses covering:

  • what happens to the family home and any other property you may own;
  • how money in your bank accounts should be divided;
  • how debts should be dealt with;
  • what happens to a family business;
  • who your children will live with and any financial maintenance;
  • whether one spouse should be allowed to keep inherited wealth;
  • what happens to your pets; and
  • how personal belongings you bought together, such as cars and furniture, should be allocated.

How we can help

If you need advice on drafting a prenuptial agreement or want advice on any other family law matter, please contact Hannah Byatt on 01480 702207 or email [email protected].

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