Tips to strengthen your pre-nuptial agreement

Roses are red and violets are blue…………..!  That day is coming around again. 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?

Apologies in advance for even mentioning this and I will quietly whisper - statistics tell us that the rate of divorce has risen slightly and in fact is the highest in Europe. The most recent 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? Without doubt romance is most definitely not dead.  But in the world we live in with all of its stresses, nobody can ever predict what might be around the corner. 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 (often referred to as a “Pre-Nup”).  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 there is a decision to split down the line. They can provide a level of certainty and are a means of protecting what you may have brought into a relationship financially.

Pre-Nups are becoming more commonplace in our modern world but although they are recognised by our courts, they are not yet strictly enforceable or legally binding. If there is a dispute in the future the court may not uphold what you have agreed to do.  So why bother?

These agreements now carry more weight than they have done previously and provide guidelines for you to turn to for help if you find yourself in dispute and heartache following a breakdown of the relationship.  They can go a long way to being enforceable unless considered to be unfair by our courts.  The onus would be on the person seeking a better settlement to prove that the agreement is unfair in order to have it overturned. The court still retains discretion to divide your assets in another way if the agreement is not considered fair, but the Government is now looking into whether the law should go further and give more protection so that Pre-Nups become legally enforceable. This would exclude the court’s jurisdiction and its wide ranging discretion, but for this to happen there needs to be new legislation which isn’t here yet.

OK – maybe I have made you think a little and the “love fog” has lifted slightly.  Is a Pre-Nup for you ? Maybe the thought of potentially sharing your assets equally on separation is a problem to you.  You may be bringing assets into your marriage from a previous relationship or had an inheritance, and want to safeguard this in your new relationship.  Maybe you accept that your property should be owned in unequal shares. You might be economically stronger 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.

To give your Pre-Nup the best chance of being upheld if challenged – don’t just write something on a piece of paper with nice fonts and paragraphs, and both sign it.  It isn’t even going to help you if you get your signatures witnessed by the neighbour! 

There are good rules which strengthen your agreement. These are:

i)  you need separate independent legal advice and the fact that you have had this will be recorded on your agreement.

ii)  you need to provide full information about your financial circumstances which will also be recorded on your agreement.

iii)  you 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) you 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.

Just a side issue – and this is not about solicitors touting for more business. But this is equally as important.  You will 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.

Please don’t stop being romantic – its what makes the world go around ! Do get good advice, and in between organising the venue, flowers and cars – sort out your financial affairs.  It will give you piece of mind and makes good financial sense.