The importance of pre-nuptial agreements

Pre-nuptial agreements are often dismissed as being “unromantic”. However, research from the Marriage Foundation shows that they neither increase nor reduce the risk of divorce. At Attwaters Jameson Hill, we understand that separating seems unimaginable when you are happily engaged, but we do strongly recommend that you consider preparing a pre-nuptial agreement – just in case.

What is a pre-nuptial agreement?

Pre-nuptial agreements are special documents which outline how a couple’s finances should be dealt with in the event of separation. They can be used when entering both marriages and civil partnerships. While pre-nups are not legally binding, the Court may place considerable weight on the document if the terms are deemed fair and reasonable.

The history

Historically, pre-nuptial agreements were assumed to be necessary only for ultra wealthy individuals who have considerable assets to protect. But attitudes are changing towards pre-nups and they are increasingly being viewed as valuable for everyone – not just famous people. According to the Marriage Foundation, one in five UK couples who tied the knot between 2000-2021 have some form of pre-nup in place. A landmark ruling in 2010 played a significant part in this; in a high-profile divorce case, the Supreme Court set a precedent for UK Courts attaching more substantial weight to properly prepared pre-nuptial agreements.

Why should you get a pre-nup?

The average marriage age is increasing, so couples may enter the marriage with more of their own non-matrimonial assets. Here are just a few examples of when pre-nuptial agreements may be necessary:

• Wealth disparity. If you are significantly wealthier than your future spouse, a pre-nuptial agreement can help to safeguard your assets. Otherwise, you risk being negatively affected if assets are divided equally during divorce proceedings.
• Safeguarding future wealth. Any financial assets that are acquired during a marriage are often treated as matrimonial assets. So, if you have a notably higher income or could inherit a significant sum of money during your marriage, it is wise to prepare a pre-nup so the assets aren’t assumed to be jointly owned by both parties. 
• Owning a business. Businesses are included as assets during divorce proceedings. So, if you are a business owner, a pre-nuptial agreement can make sure that it would not be affected by a potential marriage breakdown.
• Entering a second marriage. If you have children from a previous relationship, it is strongly advised that you protect their interests by determining which property or assets are set aside for them.
• Protecting against debt. Pre-nuptial agreements don’t just preserve your existing assets; they can also protect you against any debt accrued by your future spouse, both before and during the marriage.

The benefits

Advantages of a pre-nuptial agreement include:

• Allowing for transparency and certainty on what will occur in the event of divorce
• Protecting assets from a later financial claim
• Reducing the likelihood of emotionally draining court proceedings upon the breakdown of a marriage.

The Court’s decision

The Court’s duty during divorce proceedings is to carefully consider each partner’s circumstances and decide on the fairest solution for both parties. It should therefore be noted that the treatment of pre-nuptial agreements during financial proceedings can vary from case to case. For example, if a couple has had a child, the Court may need to prioritise their needs over the wishes expressed in the pre-nup.

The importance of professional advice

If you’re currently in the throes of wedding planning, make sure to set time aside to arrange your pre-nuptial agreement. The documents need to be signed no later than six weeks before your legal marriage, so it shouldn’t be left to the last minute. As pre-nups are not legally binding documents, seeking independent advice will give the agreement more weight in Court.

The Family Law team at Attwaters Jameson Hill has years of experience advising on all matters related to pre-nuptial agreements. To arrange an initial free consultation with one of our approachable team members, get in touch with us on FamilyDepartment@attwaters.co.uk or 0330 221 8855.