Hampshire &amp; Isle of Wight

<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1000" height="667" src="https://hants.muddystilettos.co.uk/wp-content/uploads/sites/17/2021/07/Marriage-proposal-engaged.jpg" alt="" class="wp-image-23013" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Marriage-proposal-engaged.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Marriage-proposal-engaged-300x200.jpg 300w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Marriage-proposal-engaged-720x480.jpg 720w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Marriage-proposal-engaged-768x512.jpg 768w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Marriage-proposal-engaged-787x525.jpg 787w" sizes="(max-width: 1000px) 100vw, 1000px" /></figure>



In the glorious, glowy days of being engaged, thoughts of pre-nups couldn’t be further from our minds. Romance killer or what? But is bringing up the idea with your soon-to-be-betrothed a sign of mistrust – or a declaration of confidence? And with <a href="https://news.sky.com/story/divorces-in-england-and-wales-see-highest-percentage-increase-in-50-years-12134688">latest figures showing divorces rates are at an all-time high</a>, if things don’t work out, can you really afford to be without one? 



Not exactly sure what they are? Us neither – but with more and more married couples now signing up, it could be an area of family law worth thinking about. We asked <a href="https://parissmith.co.uk/staff/danielle-taylor-associate/">Danielle Taylor, Associate at Paris Smith solicitors in Winchester</a> to give us the lowdown. Danielle, it&#8217;s over to you…



<h2 class="wp-block-heading">Pre-nups and Post-nups – why now?</h2>



Pre-nuptial
agreements are on the rise. Traditionally, they were not enforceable in England
and Wales. However, law has changed and these agreements are being increasingly
used.



There are two types of nuptial agreements. Pre-nuptial agreements (entered into before saying “I do”) and post-nuptial agreements (made after the marriage). These agreements are made between a couple regarding their respective property and support rights in the event of death (in combination with wills) or divorce. 



Sometimes, a nuptial agreement will also deal with property rights during the marriage (e.g. setting out how property is owned and used, including any distribution of rent/dividends etc). 



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1000" height="713" src="https://hants.muddystilettos.co.uk/wp-content/uploads/sites/17/2021/07/Danielle-Taylor-bw.jpg" alt="Paris Smith Solicitors" class="wp-image-23014" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Danielle-Taylor-bw.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Danielle-Taylor-bw-300x214.jpg 300w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Danielle-Taylor-bw-701x500.jpg 701w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Danielle-Taylor-bw-768x548.jpg 768w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Danielle-Taylor-bw-736x525.jpg 736w" sizes="(max-width: 1000px) 100vw, 1000px" /><figcaption> Weighing up pre-ups: Danielle Taylor, Associate at Paris Smith solicitors </figcaption></figure>



<h2 class="wp-block-heading">Why get a pre-nup?</h2>



Pre-nuptial
agreements are usually used to protect the interests of a spouse who has (or is
about to acquire by way of a contract, inheritance, gift or other means)
substantial assets, such as those with businesses or property. While these
agreements are usually to the benefit of one of the spouses in particular
(usually the wealthier party), they can aim to protect both parties (as both
parties may have pre-marital assets to protect).



Pre-nuptial
agreements are common in many second (or third, or fourth) marriages after
assets have been acquired (or reduced) due to a previous divorce or death (once
bitten, twice shy).



It can be
seen as similar to taking out an insurance policy (although it’s a legal
agreement and not insurance). You don’t expect your home to burn to the ground,
but you protect against that with buildings insurance. You don’t expect a
relationship breakdown, but you may wish to protect against financial claims by
way of a pre-nuptial agreement. 



<h2 class="wp-block-heading">Pre-nup pros</h2>



Like other
non-compulsory legal agreements, there are a number of pros and cons to think
about when considering whether to enter into a pre-nuptial agreement. 



1/They can
protect assets from being shared/dealt with upon death or divorce. The aim is
to prevent certain identified assets from being considered by the court, sold
or transferred within any future proceedings.



2/They can set
out what is “matrimonial” (assets accrued during the marriage which might be
shared) and what is not to prevent arguments and signpost the intentions of the
parties.



3/They can
protect assets belonging to one party from being used to satisfy the debts of
the other.



4/They
provide a level of clarity and transparency in respect of financial matters
prior to the marriage (so you both go into the marriage with your eyes wide
open and aware of your respective financial positions).



5/They can
provide some level of certainty on relationship breakdown, as it’s already been
agreed who should have what. This can mean saving on future legal costs.



6/They are a
clear record of discussions and agreements at the time of the document, which
can be useful down the line when recollections may be inaccurate and parties
are in conflict.



7/They can
be a useful tool for any future negotiations, as they may signify the
priorities of each party.



8/They
enable parties to have the autonomy to make their own decisions in respect of
how their assets, pensions and incomes should be dealt with, including how they
would like matters to be determined if there is disagreement in the future
(such as arbitration or mediation).



9/They have
to be taken in to account by the court. As long as the agreement was properly
arrived at and remains fair, the court should follow it. 



<h2 class="wp-block-heading">Pre-nup cons</h2>



1/They don’t
prevent either party from applying to the court for financial provision on
divorce.



2/They do
not prevent the court from making financial orders.



3/They can
disadvantage the financially weaker party.



4/They may
need to be kept under regular review to ensure that they remain fit for purpose
(incurring future legal costs).



5/They may
be less effective if there are significant changes in financial circumstances
(such as the birth of children, significant inheritances, significant
promotions etc).



6/It’s sometimes
difficult to negotiate what can be seen as a clinical legal document in the run
up to the happy day.



7/They may
lead to an earlier relationship breakdown &#8211; for example, if one party has not
been transparent about financial circumstances or does not wish to enter into
the agreement. However, some would say that this is also a pro, as it may
prevent parties from entering into a marriage which is likely to encounter
significant difficulties. 



8/In the
case of life-long and successful marriages, the document may not be used.



<h2 class="wp-block-heading">Are pre-nuptial agreements strictly enforceable?</h2>



The court is
not strictly bound by a pre-nuptial agreement when making orders on divorce.
However, the existence of a pre- or post-nuptial agreement is a fact that any
judge will need to take into consideration. If the agreements achieve fairness
and are executed in accordance with the Law Commission and Law Society
guidance, the courts are likely to be persuaded to uphold them. 



<figure class="wp-block-image size-full"><img decoding="async" loading="lazy" width="1000" height="667" src="https://hants.muddystilettos.co.uk/wp-content/uploads/sites/17/2021/07/Married-couple-hands-wedding.jpg" alt="" class="wp-image-23012" srcset="https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Married-couple-hands-wedding.jpg 1000w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Married-couple-hands-wedding-300x200.jpg 300w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Married-couple-hands-wedding-720x480.jpg 720w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Married-couple-hands-wedding-768x512.jpg 768w, https://dev.muddystilettos.co.uk/hants/wp-content/uploads/sites/17/2021/07/Married-couple-hands-wedding-787x525.jpg 787w" sizes="(max-width: 1000px) 100vw, 1000px" /></figure>



<h2 class="wp-block-heading">Should I hold off and get a post-nup later if I need it?</h2>



The
disadvantage of post-nuptial agreements versus pre-nuptial agreements is that
they take place after the marriage. This means that if one party refuses to
enter into the agreement, you are already married and financial claims may
already be available (versus having protection before the marriage or
potentially deciding not to move forward with the marriage without a
pre-nuptial agreement).



<h2 class="wp-block-heading">Having the best document</h2>



If you are
seeking the best agreement, when entering into a pre- or post-nuptial
agreement, you should ensure that:



1/There has
been transparency and disclosure of both parties’ respective financial
positions.



2/The
document is contractually valid (no fraud, duress, undue pressure or
misrepresentation).



3/Both
parties have the benefit of legal advice.



4/It’s
intended to be a binding agreement.



5/The terms
of the agreement are not fundamentally unfair (and will meet needs in
consideration of Section 25 of the Matrimonial Causes Act 1973).



6/It
confirms the intended jurisdiction for proceedings.



7/It is
executed as a deed (in the presence of a witness). This is a technical legal
point in relation to the type and execution of a document. 



8/The
pre-nup is executed no later than 28 days prior to the marriage.



9/It’s
reviewed on a relatively regular basis (for example, every five years) or in
the event of any significant changes to the circumstances.



Where
agreements are made in accordance with this guidance and meet both parties’
reasonable needs (and those of any relevant children), your pre-nup will be a
very persuasive document. 



Ultimately
of course, the hope is that your pre-nuptial document never has to be relied
upon. But the certainty of knowing that it’s there can be reassuring. For that
reason, for those with substantial assets in particular, it’s well worth
considering and taking legal advice at an early stage.



For
advice about pre- and post-nuptial agreements, contact Danielle at <a href="mailto:Danielle.taylor@parissmith.co.uk">Danielle.taylor@parissmith.co.uk</a>; 01962 679706, or speak to a member
of the Paris Smith&nbsp;<a href="https://parissmith.co.uk/our-people/?name_position=&amp;business_services=&amp;life_services=11&amp;specialist_services=&amp;surname=">Family team</a>.

The great pre-nup dilemma – can you afford to be without one?

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