Jo Lofthouse from Raworths Family Law considers the increasing popularity of Pre-Nuptial Agreements.
Wedding season is fast approaching and as blossom falls from the trees like confetti, one of the many items on the ‘to do list’ for twenty first century brides and grooms is to enter into a pre-nuptial agreement before their big day.
In the words of Catherine Zeta Jones in Vanity Fair in 2000 “I think pre-nups are brilliant”. This is a sentiment many agree with and although such agreements were once only ever considered by the most rich and famous this is no longer the case.
Couples are much savvier, they know what they do and don’t want in the event of a separation and have most likely encountered the fallout from an acrimonious divorce at some point in their lives, whether it be a family member, friend or colleague.
Pre-nuptial agreements are often viewed as an insurance policy and like all insurances we hope we will never need them but it is reassuring to know that we have them. As the adage goes, practice what you preach, I believe so strongly in prenuptial agreements that when I got engaged last year, one thing my fiancé and I agreed on from an early stage was that we would have a pre-nuptial agreement. It made total sense to us to sit down and discuss our future and how we would like it to be both in good times and bad, including the event of our ever separating. So, in between endless talks on dresses, table plans and guest lists, we tackled the bigger issues. We did this with good humour over a nice meal with a glass of bubbles and we both felt a sense of security and calm when we had finalised our agreement.
In the height of wedding plans the consideration of what could happen if a relationship ever comes to an end is unthinkable. At this happy time, many couples don’t want negative thoughts to impact upon their plans however it seems at odds that people invest so much time, money and love in planning weddings (which are, after all just one day), but don’t put a similar emphasis on future practicalities.
It’s clear that Catherin Zeta Jones is not alone in this thought and in the last 5 years there has been a significant increase in the demand for prenuptial agreements. This may be in part, down to the media’s frequent reports of costly and acrimonious divorces, but it would seem couples now want to take control, to provide a level of certainty for their future and to try to avoid litigation if a separation becomes inevitable.
Having said this, it must be noted that prenuptial agreements are not legally binding in England and Wales but they are among the factors that a Judge would look at when considering the settlement of financial issues that arise upon separation. Indeed since 2010 prenuptial agreements have been afforded heavy evidential weight within the English Family Court, unless considered to be unfair.
Therefore, on the basis that the 6 golden rules are followed, a prenuptial agreement is more likely than not to be supported by a judge.
No undue pressure – Both parties must enter into a prenuptial agreement of their own free will and without any undue influence, duress or pressure.
Legal Advice – Both parties must be fully informed of the ramifications of entering into the agreement and have had the benefit of legal advice.
Disclosure – Both parties must fully and frankly disclose their financial circumstances to one another.
Planning – A prenuptial agreement should be entered into ideally 2 – 3 months and certainly no less than 21 days before the wedding and the agreement should be confirmed by a
Post Nuptial agreement signed within 28 days of the marriage.
Intention – both parties should intend that the agreement will determine the outcome of the financial arrangements following divorce.
Needs – The agreement must consider and provide for each party’s needs, the sharing of assets and compensation insofar as it is relevant and it must be fair and within the
parameter that a court can make an order.
