The Law Society has reported a rise in enquiries about pre-nuptial agreements (pre-nups).
In my experience as a Family Lawyer, a significant proportion of those enquiries come not from the bride or groom to be but from parents.
Prenuptial agreements are formal agreements made between couples in anticipation of their marriage. They usually set out who will own what when the couple are married and what will happen if they separate or divorce.
One reason why parents are interested in pre-nups is that due to rising house prices and the need for a hefty deposit to obtain a mortgage, couples who are about to marry and want to get on the housing ladder approach them for financial help. Parents may be willing to lend money to help out but they want to ensure that their future son or daughter-in-law isn’t able to stake a claim on the deposit if the marriage breaks down.
Whilst there are various ways that the parents can protect their money, a pre-nup could be sensible for many couples. As the law currently stands, once a couple has married if the marriage fails both the husband and the wife can bring a claim against marital property, no matter who originally paid for it. This can mean that a court can decide on how to divide the equity in the family home.
Unlike in the US and much of Europe, pre-nups are not automatically enforceable in England and Wales. However, a properly drafted pre-nup on which both parties have obtained independent legal advice and where each has provided full disclosure of their financial position prior to signing the agreement can be very persuasive in Court. Whilst couples who have decided to marry don’t envisage their relationship ever coming to an end the sad fact is some do.
Last year the Law Commission recommended that pre-nups should be legally binding in divorce settlements but only after the needs of the separating couple and any children ahve been taken into account. The Commission proposed stringent requirements and recommended that to be enforceable, a Pre-Nuptial Agreement must be:
- A valid contract signed by both parties stating that they each understand the meaning and effect of the agreement.
- Made no less than 28 days in advance of the marriage or civil partnership.
- Each spouse must have given full and frank disclosure of their financial situation and
- Both parties must have taken their own independent legal advice at the time the agreement was formed.
Pre-nuptial agreements require careful planning and drafting by an expert Solicitor due to this it’s important that if you are considering a pre-nup you should consult a specialist Solicitor several months before the date of your wedding and not leave it to the last minute.
If you have any questions about pre-nups, please call me or a member of my team at the Derby office on 01332 340211 or the Ashbourne office on 01335 342208.
Article by Kirpal Bidmead – Partner and Head of Family Law