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To Pre-Nup or not to Pre-Nup, is that the question?

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Provided a Pre-Nuptial Agreement satisfies a number of different criteria, then current case law confirms that its terms should be upheld.  Pre-Nuptial Agreements are not though set in stone, and there will be circumstances where it is deemed necessary for its terms to be varied.

Entering into a Pre-Nup is a legitimate and accepted method of trying to ring-fence pre-existing assets being brought to a marriage, the aim that in the event of the marriage breaking down, those pre-marital assets will not fall into the “matrimonial pot” for division.

There will be any number of reasons why people may wish to have a Pre-Nup.  Common scenarios are one or indeed both parties to the marriage bringing significant assets to the relationship.  Alternatively one or both of the parties may have been married previously and their aim is to keep separate and apart any pre-existing assets as they wish for those assets to pass to their offspring in due course, often in circumstances where the parties are marrying later in life, and it is unlikely that they will then start their own family together.

A Pre-Nup may not be for everyone.  For example, those who are relatively young and have the vast majority of their working lives in front of them, and who do not have any significant pre-marital assets.

A factor when deciding whether or not to have a Pre-Nup drawn up is how to go about approaching the other person.  The prospect of raising this with your other half could easily be described as one of the most unromantic conversation pieces and there will always be an understandable concern about how any such request might be met. If both parties are in a not dissimilar financial position it might though be an easier topic to broach.

Given the sensitive nature of the discussions, it is advisable to start those discussions as far out as possible from the date that has been set down for the marriage ceremony, as it may take some time prior to the instruction of lawyers to reach an agreed way forward in principle.

The specific criteria that make a Pre-Nup a valid legal document fall outside of the scope of this article save for the need to bear in mind that a Pre-Nup should not be signed within a month from the date of marriage. If it was signed within those timeframes, it might then enable one party at a later date to say that they were placed under duress / pressure to sign the document so close to the date of marriage and as such, that they should not be bound by the terms of the Pre-Nup as a result of that duress.

From a legal perspective, prior to sending a draft Pre-Nup to the other person, the contents of that draft will need to be agreed with the client and the relevant documentation / information in relation to the client’s financial circumstances will also need to be gathered together.

Once any draft is sent to the other person, they then need to be given sufficient time in order to seek their own independent legal advice from a Family Law Specialist and subject to receiving that advice, there is every possibility that amendments will need to be made to the draft document, so that both parties are content with it.

Whilst each case will turn on its specific facts, generally speaking here at Clarke and Son our preference is to be instructed to assist in having a Pre-Nup drawn up at least 6 months out from the date of the marriage, especially in circumstances where we lose one of those months straightaway, due to the desire not to have the Pre-Nup signed within one month from the date of marriage.

In the event that for whatever reason a Pre-Nup is not entered into, the parties to a marriage do have the ability to enter into a Post-Nuptial Agreement, the aim being the same, in order to protect any pre-acquired assets.

From a legal perspective the main difference between the two documents is that a Pre-Nup is entered into prior to the parties marrying, whereas a Post-Nup is entered into once the parties are already married.  On marriage, the parties then have automatically conferred on them protection under the Matrimonial Causes Act 1973, which enables either party to then pursue a financial claim against the other as a result of the breakdown of their marriage.

As such, there may be less of an incentive / desire for one party to the marriage to enter into a Post-Nuptial Agreement as they might feel they are potentially waiving legal rights only recently acquired.  There is also the practical point that the marriage has already taken place and so one or both parties may not feel that their focus should then be on entering into such an agreement in the early days of their marriage.

For those thinking about entering into a Pre-Nup or indeed, a Post-Nup, whilst the analogy is not completely accurate, a useful way to conceptualise the purpose of the document is that it is like an insurance policy.

With an insurance policy there is no guarantee that it will pay out, but when it is not a mandatory requirement in law to have one, in the writer’s opinion, it is always better to have an insurance policy in place so that in the event that it does need to be relied upon, you then have that level of protection.

The other important thing to bear in mind is that with either document, if there is a material change in the parties circumstances, for example the birth of a child, then the document should be revised to reflect that change in circumstances, in order to try and ensure as much as possible that the original reasons for entering into the document are upheld or to a large extent upheld, and even in the face of that change in circumstances.


Please get in touch with our Family Department for specialist legal advice on 01255 320 555 or email mail@clarkeandson.co.uk.

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