A Valentine’s Day notion?  Why have a Pre-Nuptial Agreement?

By Susan Anderson

Many people still think that a pre-nuptial agreement is very “Hollywood” and the province of the elite and super-rich.  It is also thought by some that it takes the romance out of marriage and casts doubt on the true meaning of such a union.

In truth, there are far more situations that warrant a “pre-nup” than you imagine.  These days couples are getting married or forming civil partnerships later on in life, and it is more likely that you or your intended spouse have acquired assets prior to your union.  A “pre-nup” can set out how you would divide these assets if you were later to separate.  One or both of you may have significant assets or be involved in a business partnership or family business and there is a need to protect the other participants rather than for it to be carved up as part of a divorce settlement, causing hardship to others outside of your relationship through loss of employment and income.

If you are someone who has already suffered financial loss as a result of a previous divorce, you may be reluctant to get married again for fear of losing further assets if there were to be a breakdown of the new relationship at some time in the future.  Setting up a “pre-nup” can help to allay those worries.

There is an added bonus in that making an agreement between you enables you to be completely open about each other’s finances from the outset of your marriage or civil partnership.  Money issues are one of the greatest difficulties in relationships, and an agreement not only offers clarification, but also certainty and protection.  It limits the scope for uncertain, emotionally draining, stressful, not to mention costly, court proceedings should your relationship, sadly, come to an end.

The document you create is one which does actually encourage marriage and civil partnerships by removing some of the doubts and improving communication.  There is, too, the element of preventing financial opportunists who do, of course, exist!

You may have heard that a pre-nuptial agreement is not binding in this country, but this is law which is developing all the time.  There are guidelines which have been established in modern case law, which must be included in an agreement.  These ensure that if the agreement were to be disputed in court, the court would be satisfied that the contents were fully understood and the intention of both parties quite clear.  The court can then give appropriate weight to its terms.

The basic pre-requisites are that the agreement must be contractually valid or validly executed as a deed, containing a relevant statement.  It must be entered into prior to 28 days before the wedding or civil partnership and both parties must have fully disclosed to each other all material information, attached to the agreement as an appendix.  In addition, both must have received independent legal advice on entering the agreement.  There are other issues although this may be getting over technical!  But, these are the basic principles which, if applied, should ensure that your agreement will hold water.

So, if you are thinking of proposing over this Valentine’s weekend, this information might help you to make your decision!  Who says a pre-nuptial agreement is not romantic?!