Roses are red, violets are blue, etcetera! It’s that time of the year again and, for many, the pressure is on to declare undying love and to get down on one knee. You’ve bought the card, booked the table next to the window and ordered the flowers. The ring is in your pocket and your words are rehearsed. Could there possibly be anything else to think about on such a romantic occasion?
Well – maybe. Statistics tell us that the rate of divorce in the UK has risen slightly and is the highest in Europe. Recent figures suggest that there is an almost even chance of you not making it to a ripe old age together. For those of you aged between 40 and 44, those stats say that your group has the highest number of divorces and therefore at most risk.
Has that put you off? Should you shred the card and pawn the ring? Hold that thought - romance is most certainly not dead, but the modern world, with all of its stresses and demands, means that it is increasingly difficult to see what lies ahead. Sometimes, it’s best to hope for the best and prepare for the worst.
If you have found love a little later in life or if you have already achieved a level of financial security there is some real benefit of thinking now about how you might want things to pan out if the worst happens in the future and you find yourself separating.
Most people have heard of pre-nuptial agreements or ‘pre-nups’. This is a written agreement entered into before marrying which sets out how finances should be organised during the marriage and what should happen if you decide to separate. Pre-nups can provide a level of certainty, protecting what you may have brought into a relationship financially.
Pre-nups are becoming more commonplace, perhaps thanks to high-profile celebrity cases. However, although they are recognised by the courts, they are not yet strictly enforceable or legally binding. So why bother?
Pre-nups carry more weight than they did previously and provide guidelines if you find yourself in dispute following the breakdown of the relationship. They can often be considered enforceable unless the court believes the agreement is fundamentally unfair. Even then, the onus would be on the party seeking a better divorce settlement to prove that the pre-nup is unfair and have it overturned. The court still has the freedom to use an agreement as guidance or to ignore it altogether. It has been suggested that legislation should be introduced to make pre-nups legally binding, but this doesn’t appear to be a pressing matter for this government.
Is a pre-nup for you? Maybe the thought of your assets being equally divided on separation is a problem. You may be bringing assets into your marriage from a previous relationship or wish to protect an inheritance. Maybe you accept that your property should be owned in unequal shares. You might be financially better off than your partner and wish to protect what you have achieved already in life and avoid or reduce the chance of a court giving some of it away.
If you do decide to enter into such an agreement, you will need to give your pre-nup the best chance of being upheld if challenged. It isn’t enough to simply write something on a piece of paper and sign it. Instead, abide by some simple rules:
i) Both parties will need separate, independent legal advice and the fact that you have had this will be recorded on your agreement.
ii) Both parties must provide full information about your financial circumstances which will also be recorded on your agreement.
iii) Both parties will need time to reflect and consider. If you are rushing to your solicitors on the morning of your wedding to sign your agreement – the court is unlikely to uphold it. You need to be signing some weeks before you tie the knot.
iv) Both parties should not feel under pressure, be unduly influenced, or under any misrepresentation at the time of signing. You need to freely agree to the terms. There can be no exploitation of anyone’s position. Any suggestion of ‘no agreement – no wedding’ will not cut the mustard.
v) The agreement must be fair which will be judged at the time the relationship breaks down. So there needs to be some gazing to the future to cover what could happen within the relationship and any potential changes that might take place e.g. the birth of children.
You will also need a new will. Your marriage will revoke any will you have before the big day. Get a new one which can show your new married status and reflect your agreed pre-nup.
Regardless of whether you think a pre-nup makes sound financial sense, or is likely to stamp out any romance from your relationship, make sure you get good advice before the big day. It will not only give both of you peace of mind but could help make for a healthier, stronger relationship longterm.
By family and divorce solicitor, Mandy Rimmer