To Pre-Nup or Not to Pre-Nup?

Solicitor Caroline Gregg who is based at our Shrewsbury office is often asked for advice regarding Pre-Nuptial Agreements.

Caroline comments "To Pre-Nup or not to Pre-Nup? - this is a question you may be asking yourself in advance of your upcoming marriage.

Perhaps there’s a voice in the back of your head telling you that this is unromantic and you should get back to more exciting wedding arrangements such as flowers, stag or hen parties, guest lists etc

However, one of the few certainties in life is that life is uncertain. And much like life, so can the Court process be uncertain. Unfortunately no solicitor will ever be able to guarantee the outcome that may be reached in court proceedings. A pre-nuptial agreement is one opportunity to put a little more certainty into your life.

A pre-nuptial agreement is an agreement entered into in advance of a marriage that outlines the financial position of each party prior to the marriage and sets out how finances should be divided in the event that the marriage breaks down. It further allows the couple to stipulate how finances should be treated during the marriage and can give more control to the couple over the divorce process, should the need arise.

To enter into an effective pre-nuptial agreement, you need to:-

  1. Seek independent legal advice as soon as possible.  This is because it shows indication that the agreement was not rushed into and that neither party was pressured to sign the agreement. We recommend completing the agreement 2-3 months ahead of your marriage and in any case the agreement must be completed 28 days before the wedding.
     
    Pre-nuptial agreements can be complicated documents particularly where varied asset types and multiple jurisdictions are involved so be aware that this can take some time to draft well and to agree with your future spouse.
     
    Agreements should be drafted by solicitors and each party must seek independent legal advice. Communicate openly & be aware of any disparities as parties must exchange full financial disclosure prior to entering the agreement.
     
  2. Be aware of legal enforceability. Pre-nuptial agreements are not legally binding in the UK. However, following the decision in the landmark case on nuptial agreements, Radmacher v Granatino, the Court should give effect to a pre-nuptial agreement entered into freely where each party appreciated the implications and it would be fair to hold them to the agreement.
     
  3. Be thorough as this can strengthen a Court’s willingness to give effect to a pre-nuptial agreement.

Tensions can run very high during divorce proceedings and a family breakdown is often very difficult to deal with emotionally, personally, financially and can be particularly challenging for any children involved. Making arrangements in advance of this potential eventuality could make a difficult process less so; it can assist you in retaining more control over the outcome rather than leaving important decisions about your financial future up to a Judge – who is a third party to your relationship.  A pre-nuptial agreement can provide you with peace of mind knowing that you have considered how to protect your position, your future and the interests of any children you may have.

Caroline Gregg is an Associate of the Chartered Institute of Legal Executives in the family team of Terry Jones Solicitors, Shrewsbury Office. Caroline specialises in the financial aspects of relationship breakdown, particularly high value and complex financial work and pensions. To contact Caroline, please call 01743 285 888 or email caroline.gregg@terry-jones.co.uk.

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