The key to prenupital agreements

February 4, 2019

By Nicola Matthews, head of the family law department at Hay & Kilner Law Firm in Newcastle

Prenuptial agreements were once the preserve of Hollywood film stars but over the years, they have gradually become increasingly common.

A prenuptial agreement is a contract signed between a couple at least 21 days before they get married, which sets out how their assets will be divided in the event of divorce. They are an inherently difficult concept in themselves as they implicitly acknowledge the possibility that, at the time that a soon-to-be- married couple should be focusing completely on a future life of endless wedded bliss, there is a chance that their particular love story won’t end up being entirely hearts and flowers.

With roughly two in five UK marriages currently ending in divorce, it’s not difficult to make the argument that this could be the case.

But this doesn’t make things any easier, especially if – as is often the case – it is the parents of one
of the parties that suggests or insists on such an arrangement due to one party being wealthier than the other because of gifts or inheritances received as a result of efforts made by the parents.

At this moment in time, prenuptial agreements are not binding in the divorce court but are taken into account as one of the circumstances of the case. And if the court thinks that the agreement provides a fair outcome, it could make the agreement legally binding.

Each party should engage their own solicitor as part of the process and should also be absolutely transparent about all the assets that they own.

Every prenuptial agreement is tailored to the individual circumstances of the couple involved. While agreements often state that any assets brought into the marriage, or assets received by way of gifts from family and inheritances during the marriage, will remain each individual’s property if they divorce, this need not be the case, and couples can state what outcome they would prefer if they divorce.

Monies earned by a couple during their marriage may be added up and divided between them, but it can be difficult to put a financial value on some aspects of a marriage, such as raising children.

One partner may have worked all hours of the day to build a successful business that they might consider, in the event of a divorce, to be wholly down to their efforts, but if the other party had not stayed at home and taken on the vast majority of the responsibility for bringing up the kids, would it have even been possible for the former to spend so much time making the business so successful?

Regular review clauses also ought to be included in any agreement which either mark particular landmarks in a marriage, such as the arrival of children, the marriage lasting for a certain number of years or if any specific foreseeable situations arise, like one of the parties becoming disabled or incapacitated.

It’s crucial that any couples considering a prenuptial agreement talk openly and honestly about whether this step could be right for their relationship. Couples must also ensure they get expert advice as early as possible about what they should be doing if they do decide to go down this road.

Hay & Kilner
Established in 1946, Hay & Kilner is one of North East England’s leading independent law firms and provides a comprehensive legal service to clients both within and outside the region.

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