Amid all the preparations that come with planning a wedding or civil ceremony, making plans to protect your assets, such as property and finances, may not feature near the top of the to-do-list. However, making a pre-nuptial or pre-civil partnership agreement can prove very useful. And, at Buckles, we can help you do this.
Pre-Nuptial or Pre-Civil Partnership Agreements
A pre-nuptial or pre-civil partnership agreement (sometimes referred to as an ante-nuptial or pre-marital agreement) is reached by a couple before they marry or enter into a civil partnership. The agreement will set out exactly who owns what in relation to their belongings, assets, property, and money.
Such agreements are not unusual, and in jurisdictions in the US and some European countries they are both common and enforceable. The laws of England and Wales are somewhat different and although a pre-nuptial or pre-civil partnership agreement is not necessarily binding in the Courts of England and Wales, they may still have some use in the event of a divorce. The existence of such an agreement is a factor which would be taken into account by the Court and, for this reason, an increasing number of couples are choosing to enter into pre-nuptial or pre-civil partnership agreements. How much weight a Court would give such an agreement depends on certain safeguards.
Whilst not binding, the Courts are increasingly taking them into account when looking at disputed financial settlements in the event of a divorce or dissolution. In the absence of a pre-nuptial or pre-civil partnership agreement then the Courts will simply look to divide the assets that are considered to be in the marriage or partnership pot, which in hindsight the parties may have wished to exclude.
These agreements are often used where one or both parties have substantial wealth which they want to protect in the event of their marriage or civil partnership failing. They are also used by couples who may be entering into a second marriage or civil partnership and wish to protect or preserve assets for the benefit of children from a previous relationship. Couples may wish to simply exclude the assets which they have inherited or expect to inherit. They may hope to protect a business which they own, and to protect assets that would benefit existing children of a former relationship or marriage. These agreements can also regulate what will happen if the couple subsequently divorce or dissolve their civil partnership. The existence of a pre-nuptial or pre-civil partnership agreement may help to minimise any dispute and potentially avoid lengthy and expensive Court proceedings should the marriage or civil partnership breakdown.
The draft agreement should include a schedule of assets owned by each party, specifying what is to happen to those assets in the event of a divorce or dissolution of civil partnership. The agreement can also specify what is to happen to any property, contents, and other belongings. It can also establish whether there should be any form of pension share and if any spousal support such as maintenance should be paid after divorce or dissolution.
Pre-nuptial or pre-civil partnership agreements should be drawn up no later than 31 days in anticipation of the marriage or civil partnership (although a longer period such as three months is usually advised) and should include review periods and clauses confirming intentions if the parties subsequently have children. Both parties should take independent legal advice about what rights they may be giving up by entering into such an agreement, for it to carry more weight if relied on later.
Post-Nuptial Agreements or Post-Civil Partnership Agreements
Post-nuptial and post-civil partnership agreements have become increasingly common in recent years and, for the most part, they are similar if not identical to pre-nuptial agreements. The main difference is that these agreements are made after a wedding or civil partnership.
In essence, a post-nuptial or post-civil partnership agreement is a written agreement made by a couple any time after the date of marriage or civil partnership which specifies the financial settlement which would be made in the event that they divorced, or their civil partnership is dissolved.
When considering whether or not to enter into a post-nuptial or post-civil partnership agreement, it’s important to bear in mind that upon marriage or entering into a civil partnership, many of the parties’ assets will have become marital property. Therefore, a post-nuptial or post-civil partnership agreement would need to be drawn up to determine how to divide those assets as well as any future earnings.
It should be noted that couples are not limited to one agreement and the parties can enter into further post-nuptial or post-civil partnership agreements during the course of the marriage or civil partnership to reflect any changes in their circumstances.
In both pre and post-nuptial agreements and pre and post-civil partnership agreements it is important to provide review periods to ensure that they have been entered into freely by both parties without any pressure, and that the parties understand the implication of the agreement. It’s also important that both parties take independent legal advice and are transparent about their individual financial positions.
The leading case concerning pre-nuptial agreements is Radmancher v Granatino, in which the Supreme Court ruled that pre-nuptial agreements have magnetic importance and spouses should be held to them unless it can be demonstrated that they are unfair in either how they were created or the effect that they would have.
Buckles Solicitors Family Team can help advise you as to whether or not a pre or post-nuptial agreement or pre or post-civil partnership agreement would be appropriate in your circumstances and can help you prepare such an agreement.
