How to propose a prenup this Valentine’s Day

If thoughts of marriage are in the air this Valentine’s Day, but you are keen to protect your existing financial position, then you may want to consider proposing a prenuptial agreement.

Pre-nuptial agreements or pre-civil agreements, more commonly known as ‘pre-nups’, have been popular for years with the rich and famous, but there is now a growing realisation that they can also be useful to couples with more modest means who are keen to protect their interests before marrying or entering a civil partnership.

Linda Pope, family lawyer at Miles and Partners Solicitors in London, outlines the key things to consider if you are thinking about suggesting a pre-nup to your partner, or, if as a parent, you believe it is something your son or daughter should consider.

Do I need one?

This is a matter of personal preference, but before deciding whether a pre-nup is right for you, you need to think about what it is you are seeking to protect. For example, couples who have been married before may have assets from their previous relationship that they might wish to preserve, such as the sale proceeds from the former matrimonial home. Alternatively, one partner may be entering into the marriage or civil partnership significantly wealthier than the other and they and their family may be keen to protect their existing financial position, particularly where personal wealth is tied into a family business. Both scenarios may benefit from a pre-nup.

How do I ask for one?

There is no easy answer to this question, and no legal right to insist that your partner agrees to enter a pre-nup. Honesty is the best policy; nobody knows what the future holds and while everyone hopes that their relationship will stand the test of time, there is never any guarantee. Your solicitor will be able to advise you about ways to approach the subject with your partner, one of which may be to raise the subject as part of a general discussion about the implications your marriage or civil partnership will have on your financial arrangements as a couple. This could involve discussing the need to update your wills and to think about the ownership of the property you will live in. If your partner can see the need to think about the financial consequences of your relationship then it should not come as such a big surprise if, as part of a general discussion, you raise the possibility of a pre-nup.

The same applies if you are a parent and wish to raise the subject with your child – if you can persuade them of the need to consider the financial impact their marriage or civil partnership will have on the family more widely you stand a better chance of being able to persuade them to consider how a pre-nup might help.

How do we agree the terms?

There are a number of ways to agree the terms of a pre-nup. One option is to sit down with your partner, or your child and their partner, and agree things between you; however, this can be difficult, particularly if you are the wealthier party. Another option is to meet with a mediator or collaborative lawyer who can assist you in negotiating the terms. In either case, you will need legal advice and help with recording the terms in a formal written agreement.

Will the courts take notice of a pre-nup?

The courts in England and Wales will take the terms of a pre-nup into account when deciding how assets should be divided-up following divorce or dissolution of a civil partnership. However, this is subject to certain criteria being met:

• The pre-nup must be a valid contract entered into freely by both partners – if there is evidence that one partner was pressurised into making the pre-nup, it will be void.
• The agreed terms must be recorded in a formal document, known as a ‘deed,’ and must contain a statement signed by both partners confirming they understand the agreement is a ‘qualifying nuptial agreement’ which will prevent the court deciding financial arrangements if they divorce or dissolve their civil partnership, unless the agreement they have reached leaves either of them without provision for their financial needs.
• The agreement must have been made at least 28 days before the wedding or civil partnership took place.
• At the time the agreement was made, both partners must have received full details about their partner’s financial situation.
• Both partners must have received legal advice at the time the agreement was made.

Even if the agreement meets the above criteria, before relying on its terms the court will also consider:

• the length of the marriage or civil partnership;
• whether there are any dependent children of the marriage or civil partnership; and
• the current financial situation of both partners.

Pre-nups made by couples who choose to divorce or dissolve their civil partnership after only a few years together, or at a time when there are no dependent children, are more likely to be upheld by the court than those made by couples who have gone on to have a long marriage or civil partnership or who do have dependent children.

Conclusion

Pre-nups can be a very useful way of protecting your financial position prior to marrying or entering a civil partnership, but you need to think about the terms carefully and take legal advice to ensure that you comply with all the necessary requirements. They are likely to be particularly persuasive in short marriages and those where there are no dependent children.

For a confidential discussion about pre-nups, or any other family law matter please contact Linda Pope.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.