What is a Pre-Nuptial Agreement?

When you meet that special person, get engaged and start to daydream of your married life ahead, the last thing on your mind is the practical financial arrangements in the event of separation. It might be that you are set to inherit the family business, and Mum and Dad have suggested you need something in place to protect it. It might be that you have saved your whole life and have a large deposit to place into a house purchase with your spouse to be and want to protect it. It might be that you have assets that have accrued prior to your relationship with your spouse to be and want to protect them. There are a whole host of reasons why you might consider a pre-nuptial agreement. It is of course a difficult issue to raise and can often cause friction or anxiety. It can however be very useful, avoiding future heartache, stress and sometimes significant legal costs down the line by providing clarity.

Nuptial agreements are not legally binding on the courts in the UK, but if entered into correctly, meeting a certain criterion, are extremely persuasive. The key is to ensure the agreement is fair, and needs are met. Needs means essentially housing and income. It’s no good having a “I get everything, and you get nothing” arrangement, as unless your spouse already has pre-marital assets that will meet needs, or you have joint assets that will meet needs once divided, a court is unlikely to deem that agreement fair. Proper advice and a carefully constructed nuptial agreement that meets needs can provide you with transparency and allow you to put that issue to one side and concentrate on your marriage.

If you have assets you want to protect or have an agreement in place for, you should consider a nuptial agreement, and this can take the form of a pre-nuptial agreement (entered in advance of your marriage) or a post nuptial agreement (after the wedding). The key is following the process to ensure as far as possible the agreement carries weight and is persuasive. In order to do that, our advice is to follow these steps;

1. Ensure you both want the agreement and there is no suggestion of pressure/duress
2. Ensure transparency in the process
3. Ensure you both have the benefit of separate and independent legal advice
4. Ensure the agreement is entered into in a timely manner (not a last-minute rush)
5. Ensure the agreement is fair – your spouse must be provided for, and any agreement should contemplate children and the needs of the children (if relevant) met

If you would like to discuss nuptial agreements and how one might benefit your circumstances, contact Greg Cross, Director in the Family Law team at Crombie Wilkinson Solicitors on 01653 600070.