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How to protect your assets before and during marriage?

19 August

How to protect your assets before and during marriage?

For a long time, there has been a feeling that prenuptial agreements rob the relationship of a certain amount of romance.

The reality however, is that the breakup of partners is quite often the result of a couple not wanting to discuss their finances from the beginning of the relationship. In English practice, there are two main types of contracts between legal spouses: pre-nuptial agreement and post-nuptial agreement.

What is a prenuptial agreement?

A prenuptial agreement is an agreement entered into by partners prior to their marriage, which determines how they intend to treat their assets both during marriage and in the event of a divorce. In the contract, the future married couple can include not only financial assets, but also matters such as the conditions of communication with children should they separate, lifestyle requirements, etc. However, in practice, the most important thing to determine is the status of assets and savings, as well as the distribution of income from the business. 

What is a post-nuptial agreement?

Post-nuptial agreements differ from prenuptial agreements only in that they are signed by partners who are already married. By concluding this agreement, you can try to avoid uncertainty in the future, especially if you have previously parted ways with your partner, and later resumed the relationship.

Why should it be drawn up before the wedding - at the most romantic time of the relationship between two people?

So, how does it work? When a couple is at the stage of getting to know each other and they are starting a relationship, each of the partners should be ready to openly discuss their financial situation and any ideas and plans that they have for the future before taking any action. Some couples may have already gone through a divorce, some have children from previous marriages or some assets. By entering the next relationship and signing a prenuptial agreement, they want to protect what they already have and separate it from the "new" marriage. What exactly is included in marriage agreements depends solely on the partners and on what they agree.

It is also important to note that both types of contracts can be regularly modified and in fact are recommended to be reviewed after 5 years.

How can I ensure that my pre/post nuptial agreement is valid?

Neither type of agreement are “watertight” agreements that the court will enforce strictly in accordance with their terms. If the judge thinks that the necessary criteria have not been met, it is unlikely that your prenuptial agreement will be valid.

In order for the pre/post nup to be recognised as legally binding and upheld in court, the following points must be fulfilled:

  • both parties are required to seek independent legal advice prior to signing the agreement;
  • the pre/post nup needs to be written by a qualified solicitor specialising in family law
  • there should be full financial disclosure by both parties;
  • the terms of the prenup must be fair and reasonable. The agreement itself must be signed by the parties without coercion and of their own free will;
  • the prenup must take into account the needs of the children that the partners had at the time of its signing, as well as children who were born after it was drawn up;
  • careful consideration of details regarding international relations 

Can I be forced to sign a prenuptial agreement?

There is currently no mandatory requirement to sign prenuptial agreements and they are not enforceable in UK courts.  So, if you do not want to sign it – don’t!

However, if you decide to sign be aware that since the historic decision in the Radmacher v Granatino case, prenuptial agreements have become much more prominent in family law. The judges must certainly take into account the marriage agreements concluded between the spouses and if such agreements were correctly drawn up by a family solicitor, then their conditions will be fully considered.

Is a contract drawn up independently, but in the presence of witnesses, valid?

For the marriage contract to have legal force, both parties must receive independent legal advice and the agreement must be drawn up with the assistance of family law professionals and in accordance with the guidelines above.

At Bell and Buxton our solicitors are highly experienced in drafting pre-nuptial as well as post-nuptial agreements. If you wish to discuss this further before deciding to draw up such agreement, then we offer a free initial appointment. Should you choose to instruct us we offer an affordable fixed fee services and flexible appointments to suit you.

To arrange an appointment or for more information please contact our Family Team on 0114 249 5969.