Frightened of commitment? Is a Prenuptial Agreement the answer?
Let’s face it, it’s hardly romantic, but in addition to ordering the button holes and working out on which table you can sit Great Aunt Beatrice, sitting down with your partner to thrash out who gets what in the event your marriage fails is an increasingly popular part of wedding preparations.
Prenuptial Agreements had their origins with the rich and famous – anxious to protect their multi millions from gold-diggers – but are now a common pre-marriage consideration even for us mere mortals.
But are Prenuptial Agreements worth the paper they’re written on?
Are Prenuptial Agreements enforceable?
Well, actually, not really…
Prenuptial or Premarital Agreements are, as yet, not enforceable in the English Courts. It is for the Court to decide how assets should be divided between parties in the event of a divorce or separation.
The English Law is unusual from this point of view as many other countries including America, Australia and New Zealand and many European countries do regard Prenuptial Agreements as binding.
So if we sign a Prenuptial Agreement in the States, it will be enforceable, right?
Yes, if you get divorced in the States. But if a Prenuptial Agreement is entered into abroad and then you get divorced in England, the English Courts will still not be bound by the agreement.
So basically, there’s no point?
Well, yes and no…The English Courts have begun to take some notice of Prenuptial Agreements. Whilst a Judge will not be bound by such agreements, s/he may take it into account when deciding any financial application.
In recent cases Judges seem to have been taking more notice of Prenuptial Agreements. But in these cases the Judges have not followed the provisions of the Prenuptial Agreements precisely.
For example, where the Prenuptial Agreement has limited the money a wife is entitled to following a divorce, Judges have awarded the wife more than the sum provided in the Agreement, but less than the wife might have received if there had been no agreement.
So if we decide to do one, what kinds of things should we include?
Prenuptial Agreements should be tailored to deal with each particular couple, and each of you should always seek the advice of a specialist Family Law solicitor.
Common provisions include:
(i) Agreement that you each retain any property you respectively own prior to the marriage and that the other party will not have any claim on that property.
(ii) Provisions dealing with the home you are intending to buy, setting out what share in the property each of you will have and sometimes the contributions each of you will make to the running of the home.
(iii) What will happen to any items purchased jointly by you after your marriage. For example, some Agreements state that the parties’ share in such property will depend on the amount of money each contributed at the time of purchase.
(iv) What will happen if one of you dies. For example, that the survivor will not be able to make any claim against the deceased’s estate. This may be important to protect the interests of children/step-children.
(v) Some Agreements, particularly American Agreements, do set out the arrangements for children but as indicated above it is unlikely that such agreements would be enforced by the Courts.
And by when do we need to have signed it?
Government proposals have recommended that if a Prenuptial Agreement is to be binding it will have to be signed by both parties at least 21 days before the wedding, to avoid any suggestion that one party has been put under pressure at the last minute.
It is therefore good practice to ensure that Agreements are signed at least 21 days before the marriage.
Can we make provisions to say who will look after any children we may have if we split up?
Some Prenuptial Agreements try to set out the arrangements relating to any children in the event of a marriage breakdown. However, Government proposals state that arrangements relating to children would not become enforceable.
It is, therefore, unlikely that arrangements relating to children in a Prenuptial Agreement would have any significant effect on orders that might be made by a court following the breakdown of a relationship.
Where can I find a specialist Family solicitor to help me?
Click on the following link if you would like to contact a fully qualified solicitor who will give you a free initial consultation…
And finally, a word of warning…
In rare cases it has been known for engaged couples to have found it so difficult to agree the provisions of a Prenuptial Agreement that, in the end, the wedding has been called off!
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