This piece is about agreeing how you’d split up before you have actually married – pre-nuptial agreements, known as pre-nups. I am a partner and divorce lawyer, mediator and collaborative lawyer at Hopkin Murray Beskine www.hmbsolicitors.co.uk and we advise on all aspects of family matters. In some countries, pre-nups are commonplace. In the UK they weren’t popular because the courts tended to ignore them, and stuck to what the law said about how to split finances up, so there was not much enthusiasm for making them if you knew they would not stand up in court.
This all changed with the case of Radmacher a few years ago. To cut a long story short, pre-nuptial agreements are probably going to be treated as binding unless there are really good reasons to ignore them.
One reason for having a pre-nup is if there is a substantial financial imbalance between you, particularly if you are marrying later in life or for a second time. Having re-established financial security it can be uncomfortable to give that up. There are strong views on the use of pre-nups. Some find them the antithesis of marriage, to others it helps establish trust and security. They can assist in bringing security if a third party, perhaps a parent, grandparent or trust, is giving one party a large sum of money and they want that person to retain the money if there is a split, especially in the early years.
Pre-nups need to be fair – did both of you know what you were getting into when it was signed? If you agree that you don’t share any property, make sure you think about what kind of situation this would leave you in years down the line. Did you both have separate independent legal advice and knew everything about each other’s finances? If the agreement is signed only just-before the wedding, or before a visa is about to run out, maybe there was great pressure to sign. In this case it might be worth thinking about having an agreement after the marriage. This is not same as a pre-nup, but the court look at all the circumstances, including agreements you reach once you are married. If an agreement is blatantly unfair to one party or maybe leaves the children in a precarious financial position, the court is more likely to want to ignore it. This is especially so if the other signs of a fair agreement weren’t in place such as independent legal advice or good knowledge about each other’s finances.
A sign of a good agreement is one that plans for future events and ideally is regularly reviewed as circumstances change – does it consider what you would do if there were children, retirement or pensions? In summary there is no absolute finality about any of this but a careful, fair and flexible pre-nuptial agreement that is refreshed or reviewed would more likely than not be taken very seriously by the courts. The aim of it of course is that you never need to ask a court to intervene; you just follow the pre-nup if you should split up.
If you have any specific queries on this or any other aspect of marriage or divorce law or mediation please feel free to email me at [email protected].