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With this ring I thee wed….. Until death us do part?
Practice area: Family
Sue Bailey
Sue Bailey, a specialist family solicitor at Kester Cunningham John, offers some practical advice about Prenuptial Agreements:
With Christmas just around the corner, many loved ones will be thinking up romantic ways to propose over the festive period. Nothing will be further from their minds than what happens if the marriage goes wrong- but the statistics show we should be giving the possibility due consideration. 2 out of 5 first marriages end in divorce and 7 out of 10 second marriages also fail. It is not surprising then that it is becoming more common for couples to seek to protect themselves and their families by way of entering into a prenuptial agreement before the marriage.
Prenuptial agreements can provide a solution to issues about how assets should be divided on divorce. Entering into an agreement can enable intended spouses to plan for how their assets will be divided in the event of separation. In the last 12 months, there have been several significant decisions in the English courts which suggest that, in the right circumstances, a prenuptial agreement will be upheld on divorce.
Resolving financial arrangements on divorce can often be the most stressful part of the process, as well as the most expensive if an amicable agreement cannot be reached. Often the legal costs will exceed what is spent on the wedding. Proper planning for a wedding involves, for example, booking the wedding venue months and years ahead of the wedding date. Now that it looks as if prenuptial agreements are going to gather serious momentum in this country, couples should be encouraged at an early stage in their engagement to have an open and frank dialogue with each other about what might happen if they separate.
If a couple are already married, it is possible to enter into a 'post-nuptial agreement' setting out what should happen on divorce. A recent court decision confirmed that these agreements can also be binding on the parties to a marriage in the event of divorce.
The Government has asked the Law Commission to report on whether prenuptial agreements should become a recognised part of English law. Their report is due in 2012 and it is hoped will recommend that agreements should be binding in certain circumstances. Most practitioners agree that the following points should be considered before entering into an agreement:
1. The agreement should be signed well before the wedding- at least 21 days prior to the wedding date ideally;
2. Both parties must have had the opportunity to take their own separate legal advice ;
3. Both parties must have given adequate information about each other's financial positions ;
4. The agreement should try and reflect, to some extent, what would be a fair outcome between the parties.
Sue Bailey is a member of Resolution, the national family lawyer's association whose code of practice encourages solicitors to adopt a sensible and constructive approach designed to minimise acrimony and legal costs on divorce. She can be contacted on 01223 431154 for an initial confidential 'no cost' chat.
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