Wedding season is in full swing and alongside the venues, menus and guest lists, more couples than ever are having a conversation that previous generations rarely did: whether to put a prenuptial agreement in place before the big day. Once dismissed as something for celebrities and the very wealthy, prenuptial agreements have become a mainstream part of sensible wedding planning, particularly for couples marrying later in life, marrying again or bringing a business or property into the marriage. Lauren Power, Head of Family Law at Rowlinsons, answers the questions our team hears most often.
What exactly is a prenuptial agreement?
A prenuptial agreement is a written agreement made by a couple before they marry or enter a civil partnership, setting out how their assets, property, pensions and finances would be dealt with if the relationship were later to end. It can distinguish between what each person brings into the marriage and what the couple build together, protect specific assets such as a business, an inheritance or a family home and record how debts and financial support would be approached. The purpose is not to plan for failure. It is to let a couple make these decisions together, calmly and with full information, rather than leaving them to be fought over at the most stressful time imaginable.
Are prenuptial agreements legally binding in England and Wales?
Not automatically and anyone who tells you otherwise is oversimplifying. Unlike some other countries, England and Wales has no statute making nuptial agreements binding. However, since the Supreme Court’s landmark decision in Radmacher v Granatino in 2010, the courts will give effect to an agreement that was freely entered into by both parties, with a full appreciation of its implications, unless in the circumstances it would be unfair to hold the parties to it. In practice the courts now attach very significant weight to a properly prepared agreement and it is one of the most persuasive documents you can put before a judge.
What makes an agreement carry weight is well established. Both parties should receive independent legal advice from separate solicitors. There should be full and honest disclosure of each person’s financial position, because an agreement signed in ignorance of what the other person actually has is easy to attack. The agreement should be signed well in advance of the wedding, free of any suggestion of pressure. And its terms must be fair, in particular making proper provision for any children and not leaving one party in real need while the other is comfortable. An agreement that fails these tests may be given little or no weight, which is why homemade or downloaded templates are so often worthless when tested.
The Government has now launched a consultation period regarding rights for couples who are cohabiting and as part of this process, it is possible that prenuptial and post nuptial agreements may become legally binding. As such, it is likely that further emphasis will now be placed on such agreements.
What can and cannot be included?
A well drafted agreement typically deals with property owned before the marriage, business interests, inheritances and gifts from family, pensions, savings and how future assets and debts will be treated. It can include review clauses providing for the agreement to be revisited after major life events such as the birth of children or a set number of years, which itself strengthens the agreement by showing the couple intended it to remain fair over time. What an agreement cannot do is oust the court’s jurisdiction over children. Arrangements and financial provision for children always remain open to the court to decide according to their welfare, whatever the agreement says. Any attempt to sign away child maintenance will not be upheld.
Who should seriously consider one?
Prenuptial agreements are not just for the wealthy. They deserve serious consideration if you own property or a business, expect to receive a significant inheritance, have children from a previous relationship whose inheritance you want to protect, are marrying later in life with established assets and pensions on both sides, are receiving family money towards a home or simply value certainty. They are increasingly common where parents have contributed substantially to a couple’s deposit and want that contribution recognised. For couples where one party brings significantly more into the marriage, a good agreement often removes a source of quiet background tension rather than creating one, because everything has been discussed openly rather than left unsaid.
When should we start the process?
Earlier than you think. An agreement signed in the final days before a wedding, is far more vulnerable to a later claim that one party felt pressured. Best practice is for the agreement to be signed at least twenty eight days before the ceremony and we recommend starting the conversation with us around six months ahead where possible. That allows unhurried time for financial disclosure, negotiation, reflection and independent advice for both parties. If your wedding is closer than that, do not panic, but do get in touch quickly so we can advise on the best approach in the time available.
We are already married. Is it too late?
No. A postnuptial agreement can be entered into at any point after the wedding and is prepared on the same principles, with the same requirements around advice, disclosure and fairness. Postnuptial agreements are often used where a couple ran out of time before the wedding, where circumstances have changed significantly, for example a business sale or an inheritance, or where an existing prenuptial agreement is due for review. The courts approach them in essentially the same way and a couple who signed nothing before marrying should not assume the opportunity has passed.
How much does it cost and how does the process work?
Far less than the dispute it is designed to prevent. At Rowlinsons we offer fixed fee options for family law services so you know the cost from the outset. The process typically involves an initial meeting to understand your circumstances and aims, exchange of financial disclosure, drafting and negotiation of terms with your partner’s solicitor and signature of the final agreement in good time before the wedding. Throughout, our role is to protect your position while keeping the process constructive, because this is a document two people are building together at one of the happiest times of their lives and the tone matters.
Talk to our award winning family team
Rowlinsons’ family law team, winners of Excellence in Client Care at the British Family Law Awards, advises on prenuptial and postnuptial agreements with sensitivity and complete discretion. With offices in Frodsham and Sutton Weaver and our new Knutsford office opening this August, expert advice is close at hand across Cheshire. Contact our team on 01928 735 333 for a confidential conversation and start married life with confidence.