Getting a pre-nuptial agreement (commonly called a pre-nup) is an excellent decision for most couples. Marriage partners use it to protect assets of great financial worth or high sentimental value. It is increasingly being adopted by both high-net-worth individuals and those with modest assets. However, it doesn’t mean it’s right for you. Before you make this critical decision, you must consider the advantages and disadvantages of entering into a pre-nup.
This article will explain how pre-nups work and the pros and cons of a pre-nuptial agreement.
What is a pre-nuptial agreement?
A pre-nuptial agreement is a document signed by a couple before marriage. The agreement stipulates how the couple’s assets should be divided in the event of divorce.
The pre-nup can also, in tandem with a well-drafted will, include information on what a living spouse is entitled to when their partner dies.
A pre-nup can cover all assets, regardless of their financial worth. You can use it to protect your business interests, savings, inheritance, pensions, artworks, provisions for children from a previous marriage and even items that seemingly don’t have value in the eyes of others. Additionally, you can structure a pre-nup to protect you from whatever debt your partner may be bringing into the relationship.
What is the main purpose of a pre-nup?
A pre-nup allows divorcing couples to efficiently resolve financial disputes without going to court. Since both parties had agreed to the terms before entering the marriage, there should be less friction when it comes to deciding which assets are to be shared and which should be left alone.
Pros and cons
There are many more benefits of getting a pre-nuptial agreement, just as there are cons to this decision.
Pros:
- Transparency: A pre-nup agreement’s most significant benefit is transparency. Both partners, from the onset, know which assets are off-limits to the other party. It helps to build trust and reduces the possibility of confusion and friction in the future.
- Protection for loved ones: A pre-nup is an excellent option for people with dependents from previous marriages, such as children, stepchildren and ageing parents. This agreement ensures that the assets required to care for those dependents are protected during any potential future divorce.
- Prevention of financial ruin: Many people consider marriage a financial risk due to the high divorce rate. A pre-nup allows these people to follow their heart’s desires while ensuring they don’t get into financial difficulty due to the marriage. It may also assure them that their partners are genuinely interested in them and are not getting married to gain a share of their wealth.
- Less friction: Divorce can be a nasty affair. But it can also be a smooth process where each partner leaves with fewer disputes and easy resolutions. Both parties can use the pre-nuptial agreement as reference points to resolve issues and share assets for the mutual satisfaction of both parties.
- Wealth protection: Many marriages occur between individuals with a significant disparity in wealth. A pre-nup ensures that the partner with more assets does not lose their hard-earned wealth in a 50/50 split of assets and conversely, can make sure that the partner with less assets is not left out in the cold.
Cons:
- It feels like a plan to fail: Many couples avoid pre-nups because it feels like they are pessimistic about the future of the marriage. Some people also find it unromantic. However, a pre-nup doesn’t mean a marriage will end. It only ensures that both parties know which assets are in the marital pot and which are individually owned.
- It seems like an indication of distrust: Some people believe their partners do not trust them enough if they ask them to sign a pre-nup. The truth is that pre-nups keep honest partners honest and protect you from dishonest partners.
- The court has the final say: The courts are under no obligation to enforce pre-nups to the end; at the end of the day, the court will consider the pre-nup and make its own decisions. However, they are very influential on a court’s decision and even when there is reason to deviate from the pre-nup, the court will usually still use it as a starting point.
Are pre-nups legally binding in the UK?
Pre-nuptial agreements are legal agreements and while they are not legally binding in England and Wales, following the landmark case of Radmacher v Granatino in 2010 they can hold significant weight in proceedings. In this case, the supreme court gave guidance as to what weight should be apportioned to pre-nup agreements.
Some matters the court will consider when deciding how much weight to give a pre-nup are:
- Whether the parties agreed to the pre-nup without any undue pressure or duress
- Whether parties obtained independent legal advice prior to signing the agreement
- Whether there was full and frank financial disclosure before signing the agreement
- What parties’ intentions were at time they they signed the agreement, as far as they can be ascertained
- Whether parties’ circumstances have changed in a way that they did not anticipate when signing the agreement
- Whether holding parties to the pre-nuptial agreement would not be fair or just
Also, the reasonable requirements of any children of the family will always override a pre-nup if the pre-nup does not adequately care for them.
This article focuses on pre-nuptial agreements signed before the marriage takes place but many of these same pros and cons can be applied to post-nuptial agreements which can be entered into at any time after the marriage ceremony and act in much the same way as a pre-nuptial agreement.
For more information or to get started, book a free consultation with one of our expert family solicitors or call our office on 020 7100 6100.
