With This Pre-Nup I Thee Wed
Most weddings involve many months of planning and agonising decision-making, but in addition to choosing venues, rings and honeymoons, should you be considering a pre-nup?
Originally an American innovation, a “pre-nup”, or more formally a ‘Pre-nuptial agreement’, is made before marriage and regulates how a husband and wife will hold their assets. It can also set out how assets would be divided should the parties divorce. Naturally, this is not the most romantic of topics but it seems likely that it is something more and more couples will add to their “to do” list.
Although pre-nups are usually used where one party already has significant assets and wishes to protect these, they are also often used where there is a second marriage or the prospect of a significant inheritance.
Contrary to what you may believe, a pre-nup is not legally binding in the UK. Until recently, the Courts were reluctant even to consider pre-nups but they are gradually becoming more significant. The Courts have now started to acknowledge that they can be part of ‘all the circumstances’ under s25 (1) of the Matrimonial Causes Act 1973. However, as matters stand at present, they are persuasive, rather than absolute.
To make a pre-nup as effective as possible it is necessary to ensure:
- Both parties have given full financial disclosure of their assets;
- Both parties have had independent legal advice;
- Both parties signed the pre-nup well in advance of the wedding (at least two months, so at least you would be spared inviting your lawyers to your wedding!);
- No pressure is applied by either party or their families on the other;
- Neither spouse exploits a dominant position; and
- Provision is made for a review of the terms of the agreement after time (usually when children have been born).
Unless these factors are considered, the pre-nup will probably be ineffective.
The law on pre-nups has developed further in the recent case of Crossley-v-Crossley, where the Court of Appeal upheld a decision that the wife had to demonstrate why a pre-nup should not be relevant or enforced. Before this case, the reverse had been so. It therefore appears that the tide is turning and pre-nups are going to become more and more important, particularly on remarriage or where there are significant assets. If Sir Paul McCartney were to remarry, he would be well advised to consider a pre-nup – this time!
Sarah Beardmore is a family law solicitor with Raworths. To contact Raworths telephone 01423 566666 or visit our offices at Eton House, 89 Station Parade, Harrogate, HG1 1HF. Alternatively you can email Sarah - sarah.beardmore@raworths.co.uk
