Pre and Post Nuptial Agreements ('Marriage Agreements')
If you are about to marry or enter into a civil partnership now is the time to think about having a pre-nuptial/civil partnership agreement. These formal agreements between couples set out what the financial arrangements are to be both during the marriage or civil partnership and in the event the relationship breaks down. A post-nuptial/civil partnership agreement is exactly the same, but entered into after the marriage or civil partnership ceremony.
If you have assets that you want to protect in the event of divorce or separation a marriage agreement is the only way you can achieve this. They may not be right for everyone but provided the agreement has been freely entered into by the parties with a full understanding of its implications and provided of course it is fair, it should be upheld by the Court.
We appreciate that for many couples the idea of agreeing what should happen in the event of their relationship breaking down, before they are even married, just seems wrong. They may feel that they would be able to agree matters between themselves if they separate or if not they would be happy for a Court to make the decision for them. If you fall into one of these categories it may be that a marriage agreement just isn’t right for you.
But there are many reasons why we believe having a marriage agreement is the right decision: -
Peace of mind
Sometimes things just don’t work out the way you planned. A marriage agreement is just an insurance policy to protect against the ‘worst case scenario’ and can provide certainty and security for both parties in the event of divorce or separation. The agreement is not just about protecting assets, but also ensuring that appropriate financial provision is made for both parties if their relationship breaks down.
You will have heard the old adage ‘what’s yours is mine’ and it couldn’t be truer when it comes to marriage and civil partnerships. The mere fact that one of the parties has brought substantial property or assets into the relationship is unlikely to carry much weight if those resources are required to meet the parties’ needs or after a long marriage or civil partnership. If you want certain assets to be ring-fenced you will need to record this in a marriage agreement.
Gifts and inheritance
Many couples mistakenly believe that if they receive a gift or inheritance prior to or during the marriage or civil partnership their spouse or civil partner will have no claim against it. That is not the case and if needs must the Court can redistribute funds gifted or inherited by one party to the other. If you have or are likely to receive a substantial gift or inheritance it is certainly worth having a marriage agreement.
Once bitten twice shy, as the saying goes. If you’ve been through a messy divorce or separation before it is understandable that you’d want to avoid going through it again. Indeed, for that very reason, the Court will attach far greater weight to an agreement entered into in contemplation of a second marriage or civil partnership.
Avoiding the hassle
It may not be the most romantic thing to do before your big day, but many clients say they found the process very therapeutic and reassuring. Forewarned is forearmed, right? If you know what you are entitled to from the outset it is likely to be far less acrimonious if the relationship breaks down later on. A marriage agreement can also help avoid the emotional stress and cost of contested litigation that can so often follow the breakdown of a relationship.
- Both parties must have had the benefit of independent legal advice regarding the terms of the agreement.
- Both parties must have provided their financial disclosure to each other and their legal advisers prior to the terms of the agreement being finalised.
- There must be no evidence of undue pressure being exerted to sign the agreement.
- The agreement must provide a fair settlement, meeting the needs of both parties in the relationship and any children.
- The agreement must be entered into no fewer than 21 days prior to the marriage or civil partnership ceremony.
- The agreement should be reviewed regularly and, if necessary, updated to ensure that the terms take account of any change in the parties’ circumstances and remain fair.