Planning your summer wedding – thought about a prenuptial agreement?22 May 2019 | Sarah Scott
With the good weather over the bank holiday it feels like summer is already here. For family lawyers, spring brings with it an increase in enquiries about prenuptial agreements with ‘about to be newly-weds’ putting plans in place for their summer weddings.
The last thing you want to consider once you have had the wonderful proposal, spread the news to your family and friends and started to plan the wedding of your dreams, is to discuss what would happen in the event of a divorce. However, it is sensible to discuss now, when you are in a good place together, what would happen in the unlikely event that you separate in the future, when inevitably emotions will be running high; it is about being pragmatic.
It appears that the singer Adele did not enter into a prenuptial agreement with her husband, Simon Konecki, and perhaps it is something she should have considered. In the absence of a prenuptial agreement, current law means that Simon is able to make a range of financial claims in respect of Adele’s reported $180 million fortune, which may otherwise have been restricted had such an agreement been in place.
Nevertheless, prenuptial agreements are not just reserved for the fabulously wealthy but for those with potential inheritance, family businesses and/or pre-acquired assets. Couples tend to wed later on in life (the average age was 37.5 for men in 2015 compared to 37 in 2014 and 35.1 for women in 2015 compared to 34.6 in 2014) so it is not implausible to think couples may have accrued their own assets by the time they marry.
I do not intend to go into the law surrounding pre-nuptial agreements in great detail, as my purpose here is to provide couples considering drafting an agreement with some useful tips
So, you have just got engaged and you or your spouse-to-be have some assets you wish to protect. What should you be considering?:
1) Time frames
Many clients seek advice just a few weeks before the wedding, much to any family lawyer’s horror. The agreement should be finalised (i.e. signed by all the parties) within 28 days of the wedding. It can take weeks to finalise an agreement between solicitors so to ensure that you do not end up rushing the last stage you should approach a solicitor no less than 3 months before the wedding but the earlier the better;
2) Think about all eventualities
Whilst the agreement cannot ‘crystal ball gaze’ it will need to deal with as many eventualities as possible in the future such as potential children and any impact that may have on the income needs of the parties. The agreement should be reviewed every 5 years or so and after the birth of any child but you should ensure that you discuss this with your finance in advance;
Something that clients tend to ignore is the strict definition of joint and separate property. You need to clearly set out how you will deal with assets acquired before the wedding, assets acquired during the marriage in your sole names, assets acquired in joint names and any increase in value during the marriage. You will then need to consider what should happen if those assets become mingled such as one person using their own funds to purchase something for the family or one person contributing to an asset owned by the other;
4) Financial disclosure
You will be expected to provide financial disclosure to the other. This means collating supporting documents for all of your respective assets. You should think about whether you want to do this via, your solicitors, or directly. If directly then your solicitor may ask you to sign a disclaimer;
Where do you intend to live? Is there any chance you may emigrate? At this time it is of course important to consider the impact Brexit may have on any agreement especially if there are connections to other countries; and finally
Does the agreement meet the respective needs of the parties if one person were to stop work to raise the family, or due to disability? Needs is a broad concept including income needs and housing needs.
Word of warning
Remember, at the time of writing prenuptial agreements are still not legally binding agreements which means either party can still make an application to the Court in the event of a divorce. Therefore if its terms do not meet the parties’ financial needs then it will not be upheld in the event of the parties separation. The law remains that a prenuptial agreement is one of the many factors taken into account by the Court when considering the facts of the case in line with Section 25 of the Matrimonial Causes Act (known as the S.25 factors).