“For as long as you both shall live …” But get your ducks in a row first.

22 Apr 2016

Getting married? So you have chosen your venue, booked a caterer, decided on a colour scheme, contemplated killing the mother-in-law or mother or both……. But have you considered a Pre-Nup?

A Pre-Nuptial Agreement is a written contract created by two individuals before they are married. It typically lists all of the property each person owns, as well as any debts, and specifies the rights of each individual in the event of the marriage breaking down.

In short, a Pre-Nup allows you to plan for the future in the unfortunate event that wedded bliss is short lived. That said, modern agreements will record that “the purpose is to promote and encourage the marriage rather than to facilitate its breakdown”.

For example, a Pre-Nup can incorporate:

  • The ring fencing of assets acquired before the marriage, property and business interests being the more obvious examples, or unmatched contributions towards the purchase of the family home;
  • Consideration of foreign property;
  • Agreements as to the ongoing financing of the family home and any debts;
  • Provisions detailing financial provision on the death of either spouse;
  • Careful planning as to the division of capital (property and pensions) and income (wages) on divorce.

As for lawyers, the landmark case is that of Radmacher (a very wealthy French woman) v Granatino (a not so wealthy German). Here, the Supreme Court ruled that assuming both parties enter into the Pre-Nup voluntarily and that they both understand the agreement, then the terms shall be upheld, assuming the result is fair in all the circumstances.

Please bear in mind that, at the time of drafting, the Pre-Nup is likely to be fair. It would be for your lawyer however to advise as to the assessment of fairness in the future. For example, a Pre-Nup cannot prejudice the reasonable requirements of any children of the family. Similarly, the longer a marriage lasts, there is a far greater chance that it may not be fair to hold the parties to the terms of the Pre-Nup because of unforeseen changes in circumstances.

Please note that Pre-Nups must be signed at least twenty eight days before your wedding, so do consider, in between the cake testing, invitation writing and dress fitting, an appointment with a solicitor.