It is felt that the romance and ceremony of a marriage is somewhat shrouded in cynicism if a couple prepare for their big day by having a prenuptial agreement, or pre-nup drawn up beforehand. But complete transparency and putting all your financial affairs on the table before a marriage is increasingly being seen as a sensible and practical thing to do. And this is the case across different generations, as the young and older age-groups agree on the importance of having financial affairs in order before a marriage changes your legal status.
Furthermore, it is generally agreed that the older you get, the more important a pre-nup becomes. There are several reasons for this, which take into account the viewpoints of both younger and older people:
- Millennials are typically getting married later in life and increasingly are the children of divorce themselves. This means they have experienced the emotional strain of a marriage breakdown first hand and understandably wish to protect themselves from such complications later in life.
- Second and third marriages are still common later in life, but this brings an added layer of complexity to your estate. So a pre-nup becomes a very wise option and suits the flexibility in what can be included when the agreement is drawn-up. This is because the older you are when you get married, the more likely it is that you have accumulated financial, property or business assets.
- Re-marrying in later life also increases the likelihood of children being involved in a pre-nup agreement and maybe even grandchildren. A pre-nup ensures they are properly protected in terms of inheritance.
- If you are approaching retirement or already retired it is critical that you protect your finances. This can include pensions and medical insurance and protects you in the likely upcoming scenario that you have no regular income.
What should be included in a pre-nup agreement?
Understanding what should be included in a pre-nup and how it should be structured, is critical in terms of the fact that pre-nups are still not legally enforceable, and hence it needs to include key elements in order to increase the likelihood that a court will follow it.
Twelve years ago, the Supreme Court made an important decision in relation to pre-nuptial agreements, via a case called Radmacher and Granatino. This involved a very wealthy couple but set a legal precedent that is applicable to all marriages. Although a pre-nup is not automatically enforceable by law, after the court judgement in this case it is generally accepted that a divorce court will always seek to follow the directives agreed in a pre-nup. This is unless it finds that following the pre-nup would lead to an unfair result.
Marrying couples who do not specify their own arrangements in a pre-nup run the risk of having such arrangements imposed on them by the courts. This could lead to cost and upset further down the line should a marriage break down, so it is sensible to plan to avoid this even if it is not exactly a romantic pre-wedding gesture. As a result of the above case, it is likely that a court will follow the terms of a professionally drawn pre-nup agreement, as long as it meets the following requirements:
- Both spouses have had separate and independent legal advice
- Both spouses have disclosed to each other full details of their financial position at the time of the agreement
- The agreement has been completed sufficiently in advance of the date of the wedding
- The agreement doesn’t allow either spouse to avoid potential financial responsibility for any children of the marriage.
Ison Harrison’s Sarah Laughey, our Director and Head of Private Family law commented:
“Typical situations where a pre-nup can be helpful include where the husband and wife, or both of them, already own property or assets, perhaps from a previous marriage or relationship. A pre-nuptial agreement can serve to ‘ring-fence’ such assets from claim should the marriage break down, and there is a divorce”.
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A properly drafted pre-nuptial agreement in place before a marriage ensures that a spouse is unlikely to be successful if they asked the court to make a decision on financial settlement, although the other spouse can’t prevent this from being raised in court as part of the divorce settlement. However, it is now easier and more popular to apply to the courts in an attempt to stop this at an early stage.
While these are all factors which contribute to the importance and practicality of a pre-nup agreement, these factors increase in value if you have accumulated more assets and are experiencing a marriage break-up in later life. Your proximity to retirement puts you in a vulnerable position, so it makes absolute sense to draw-up a pre-nup agreement if you are marrying as an older person, because the flexibility of this agreement allows you to include the key elements that are relevant to you.
Contact our highly experienced team of family lawyers today for specialist family law advice on the benefits of pre-nups. We can outline exactly what the process involves and help you if you want to make a start on arranging a pre-nuptial agreement. We have law society-accredited Family Law specialists based throughout our 18 branches across the Yorkshire area. This knowledge base includes a diverse range of dedicated areas of the law, which can help you with any family law issue including divorce, separation and financial issues, cohabitation, pre and post-nuptial agreements, child arrangement orders, care proceedings and domestic violence.