Spring is in the air in Devon and Cornwall, and the wedding season is upon us in earnest. However, before tying the proverbial knot, an increasing number of couples are taking the pragmatic step of making a prenuptial agreement to plan what would happen if the marriage does not work out. These are often used by those marrying again or later in life.
Fiona Yellowlees, Partner in the Family Department at WBW Solicitors, explains the benefits of a prenuptial agreement and outlines what it can cover.
What is a prenuptial agreement?
A prenuptial or premarital agreement is a formal written document in which couples agree before their wedding how all their belongings – including money, property and other assets – will be divided between them should their marriage unfortunately break down. It is basically an attempt to circumvent the formula that courts will ordinarily use to divide assets after a divorce and aim provide some certainty.
Are they legally binding?
In the landmark decision of the Supreme Court in Radmacher v Granatino, prenuptial agreements were for the first time recognised as enforceable under UK law. The courts still has the discretion to set them aside, however, if they are deemed unfair – particularly if the children of a marriage are likely to suffer if the prenuptial agreement was enforced.
In assessing fairness, the court will apply the three-stage test set out in Radmacher. This means:
- the agreement must be freely entered into;
- the parties must fully appreciate the implications of their agreement;
- the prevailing circumstances must be considered when deciding whether it is fair to hold the parties to their agreement.
Why get a prenuptial agreement?
A well-drafted prenuptial agreement can provide some peace of mind for both parties before they embark on their new life together. They can be particularly beneficial if:
- assets would be difficult to splits in half equally;
- you want to protect a business or inherited wealth;
- either person has children from a previous relationship who they want to provide for;
- you want a say over how financial matters would be resolved in the event of a divorce; or
- you want to ensure you will not be liable for a partner’s outstanding debt.
How a solicitor can help
If you are considering entering into a prenuptial agreement, it is essential to consult a specialist family lawyer beforehand to ensure that:
- both people have legal advice – from different solicitors to avoid accusations of conflict of interest – before the agreement is entered into;
- you understand all the terms and their implications;
- you have entered into the agreement of your own free will;
- the terms of the agreement are fair according to the Radmacher test;
- all assets of both parties have been fully disclosed;
- the agreement is signed at least 21 days before the wedding, preferably some months before.
For further information, please contact Fiona Yellowlees in the Family Law team on 01626 202415 or email firstname.lastname@example.org. WBW Solicitors has 9 offices across Devon and Cornwall so we are only a short drive away should you ever need to visit us in person.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.