Getting Married? Already Married?

What happens if you split up?

(In the interests of equality this article also applies to civil partnerships)

I make no apologies for appearing pessimistic but 40% of marriages end in divorce in this country and the party's rights and responsibilities are often left to the courts to decide. That can produce unexpected results or results that you feel are unfair to you.

Therefore you may wish to have some control over what happens to your assets of the marriage fails, especially if you have brought in or are bringing in substantial assets into the marriage, or you wish to have some control over who gets your assets (for example your children from another relationship). Additionally, if both parties can agree what should happen to their assets if the relationship breaks down, it could save a great deal of acrimony, stress, uncertainty and legal fees!

For many years, the English courts have declined to uphold a prenuptial or premarital agreement but recently, in a landmark case in involving a German heiress, the Supreme Court held that:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

This is an important decision and anybody who is contemplating getting married should ask themselves – “why shouldn’t I have a pre-nup?”

For nuptial agreements to enforceable and upheld by the English courts, they should be:

(1) Freely entered into by both parties with no undue pressure or misrepresentation;
(2) The parties’ financial circumstances should be fully and truthfully disclosed;
(3) Understood in terms of their effect by both parties with the help of independent legal advice; and
(4) Fair to the parties

So what should you look out for when you're thinking about having a prenuptial agreement in England and Wales? Here are some pointers:

1. Don't leave the drafting and signing of the agreement too late, allow at least a month between the signing of the agreement and the wedding ceremony. Therefore, both parties should be taking legal advice at least 3 to 4 months before the ceremony because negotiations, drafting the agreement and amendments etc can take time.

2. You should both take independent legal advice from a family lawyer who will explain to you the facts of the agreement and the difference it makes to any rights you may have under matrimonial law.

3. Make sure you and your intended spouse exchange a detailed summary of your/their financial circumstances. After all, unless you are clear as to what you are going into the marriage with and what you might expect during the marriage including inheritances, you cannot properly agree a way forward if the relationship breaks down.

If you are already married, you can still have a post-nuptial agreement provided you follow the advice in 2 & 3 above.

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