18 January 2019
Thinking about getting married? Let your heart…and head… lead the way
It is very exciting when you and your partner decide to get married or enter a civil partnership. But it is important to think carefully about the legal implications of this decision. While your enthusiasm shouldn’t be curbed, it is important that you take legal advice before the big day, as Claire Filer, family partner at B P Collins, explains.
Pre-nuptial agreements are entered into by a couple who are planning to marry with the intention of setting out what should happen if the relationship breaks down. The agreement deals with financial arrangements and usually sets out what should happen to property owned before the marriage, property acquired during the marriage, gifted or inherited property or whether maintenance or capital provision should be paid by one party to the other. It can however be more detailed and could, for example, deal with specific assets such as shares in a business.
Marrying in later life?
Pre-nuptial agreements can be particularly important for a couple who have been divorced before or for someone who might expect to inherit money during the course of the marriage. They may have children from a previous relationship for whom they wish to safeguard their assets.
Whilst the agreement cannot prevent either spouse making a claim to the court in the event of the breakdown of the marriage, the court will take the agreement into account provided certain requirements are met. It is also likely to uphold it, if the decision does not leave one party in a predicament of real need and there are no vitiating factors, such as undue influence or duress.
Post nuptial agreements
Post nuptial agreements are similar to prenuptial agreements however they are entered into after a marriage, either shortly afterwards to take the place of a pre-nuptial agreement because, for example, it was contemplated too close to the marriage and the proximity would have been a potential vitiating factor, or later in the marriage. A trigger for a post nuptial agreement is often the expectation of a gift or inheritance from parents.
What to consider
Both parties should take independent legal advice from a specialist family lawyer well in advance of signing an agreement. In the case of a pre-nuptial agreement it is better to start talking about it as soon as a date is set for the wedding and preferably at least six months before the big day. Agreements which are signed too close to the date of the wedding are more likely to be open to challenge, unless they have been contemplated and discussed some time in advance.
A frank discussion should take place about what you want the agreement to do, prior to taking that advice. The provisions must be fair and guidance should be sought about what ‘fair’ means in the context of your relationship. The agreement should also include, if relevant, a requirement that it should be reviewed when certain things happen, such as the birth of children or one party being unable to work.
A key condition of the agreement is that it should be signed with the benefit of a full and frank disclosure of each other’s capital and income resources.
Getting past the emotional barrier
Marriage and civil partnership confer a unique status and impose obligations of mutual commitment and support on each spouse or civil partner. It is often difficult for people to get past the emotional barrier of discussing what should happen if their relationship breaks down when they are happy.
Although nuptial agreements can be considered unromantic, such agreements can actually be a buttress to a relationship, as couples find that they’re able to talk openly and honestly about potentially difficult and challenging topics.