Pre-nuptial agreements are not merely for the wealthy. Whether you expect to inherit substantial assets in the future, or have family heirlooms you want to ensure remains within the family, everyone should consider entering into a pre-nuptial agreement.
No one enters a marriage or civil partnership with the expectation it will end, but if the worst happens, having an agreement in place helps to reduce the stress and anxiety surrounding a break-up. If you are wealthier than your partner, or your earnings are higher, you may want to maintain this if you decide to divorce. It is fairly commonplace for courts to divide assets on a 50/50 basis, and a pre-nuptial agreement increases the likelihood that you will retain more than 50% or more under the terms of the agreement.
Conversely, if you have less wealth than your partner, you will probably want to ensure your financial peace of mind if you divorce. This is particularly important if your non-financial contributions to the marriage or civil partnership, such as running the family home and looking after the children, may not otherwise be recognised.
An agreement could help you protect your assets where:
You are remarrying and want to protect the settlements received from a previous marriage or civil partnership.
You have dependents or children outside the marriage, and you want to protect specific assets for their benefit.
You or your partner have debts or other liabilities that you don’t want to impose on the other.
You have a business you want to ringfence from being considered as a matrimonial asset.
You wish to safeguard particular family heirlooms or estate assets.
You have wealth overseas you wish to protect.
What are the benefits of having a pre-nuptial agreement?
The main advantages of entering a pre-nuptial agreement include:
Transparency
Both parties can make it clear from the outset that there is specific property belonging to you that will not be shared if you divorce. This property is typically referred to as ‘non-matrimonial property’.
Certainty
By agreeing with your partner before you marry or enter a civil partnership how your finances will be divided should you divorce, you save each other the uncertainty that can come from arguing about your finances if you divorce.
Money saving
Whilst legal fees will be charged for the preparation, drafting and advice for a pre-nuptial agreement, it is likely to be more cost effective to negotiate than it will be to litigate the division of marital finances.
Protect assets
As discussed above, you can agree to ringfence certain property or assets. In these cases, a court will be less inclined to award a share of that property to the other party during divorce.
Minimises animosity on divorce
By setting out how assets should be divided at the beginning of your married life, it should, in theory, mean fewer arguments about your finances. It may also help maintain an amicable process during the divorce and afterwards, because both parties will know what they are getting.
Protects business partners
If you have a business partner, a pre-nuptial agreement can protect their interest. It can also help to prevent business disruption.
There are several requirements that must be met when entering into a pre-nuptial agreement. The court will determine whether both parties entered into the agreement of their own ‘free will’, and with no pressure from anyone else. It is also important to demonstrate that there was sufficient time for both parties to consider the terms of the agreement and obtain independent legal advice regarding potential legal implications.
What is needed for a pre-nuptial agreement?
In order for your pre-nuptial agreement to have the best chance of being upheld by a court, you should consider the following checklist:
Both parties fully disclose all assets and property, details of which, ideally, should be annexed to the pre-nuptial agreement.
Both parties should confirm in writing that they understand the terms of the pre-nuptial agreement, and they accept being bound by them.
Each party must get independent legal advice.
The agreement should be signed before the wedding, ideally, at least 21 days before the ceremony takes place.
Neither party must have been placed under duress or undue influence and enter the agreement freely.
The terms of the pre-nuptial agreement must be ‘reasonably fair’.
‘Fairness’ in this context may seem to oppose the purpose of an agreement which serves to protect someone’s pre-acquired wealth or assets. And, to date, there has been very little in the way of litigation that has challenged this concept. Generally, it is taken to mean that both parties to the relationship should be able to meet their own needs and that of any children.
Contact Our UK Family Law Solicitors based in Manchester, London and Birmingham
Discussing pre-nuptial agreements is an important conversation to have with your partner. Our team of Family Law experts know how difficult this conversation can be to have, and will be here to support you – even just through an informal chat. To find out more, contact Iwona Durlak, Family Law Partner and Solicitor by calling 0330 107 0107 or email info@imd.co.uk. Once we are contacted by you, one of our helpful team members will contact you. Please note we have a team of lawyers who speak many languages including English, Polish, Romanian, Russian and Lithuanian.
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.
F v F - Acted for a German husband in a complex financial remedy matter. He decided to instruct IMD Solicitors after he had lost trust in his previously instructed solicitors and feared that he would not achieve a favourable outcome from the proceedings. The relevant assets were spread across the globe with some located in the UK (including a multi-million pound business), Gibraltar, Spain, Dubai, and Poland. The overall value of assets exceeded £24 million. The husband had been cut off from the matrimonial assets and excluded from control of the business that had been established by his family. The case involved the instruction of numerous experts, for business valuations, Capital Gains Tax reports, and opinions on the enforcement of orders in foreign jurisdictions, and dealing with several applications, including applications for orders to freeze assets, prevent the disposition of assets, for the joinder of parties, and to litigate conduct issues. The final result exceeded the client’s expectations.
L v L - We were instructed by a mother in a complex international children matter. She was required by orders of the UK courts to return the child to the UK from Poland. She had travelled with the child to Poland but, following unsuccessful application to extend her stay there in August 2017, she decided not to return to the UK because the child disclosed sexual abuse by a member of the paternal family and the father. In September 2018, the Polish court dismissed the father’s Hague Convention application for the child's return on the basis of Article 13(b), a decision which the father appealed. In March 2019, the father applied to the UK High Court for an order for the child’s return pursuant to the procedure set out in Article 11(6) – (8) of the Brussels IIA Regulation. Despite the father's unsuccessful Hague Convention application in Poland, the UK court ordered the return of the child. Article 11 does not allow the court of the returning country much discretion. After all of this, the mother instructed IMD Solicitors to apply to discharge the orders of the UK Court for the return of the child. Even in the face of the fact that most applications to discharge such return orders fail, we succeeded. We are currently awaiting a decision in the UK courts on a further application for the transfer of jurisdiction to the Polish courts where the mother resides with the child.
G v P - We represent a Spanish mother in respect of an urgent application for a Child Arrangements Order and Specific Issue Order in the UK seeking the relocation of the child to Spain. This was after the return of the child to the UK under Hague Convection proceedings which this mother lost in Spain.
She was asking for an order for the relocation of the child back to Spain and an urgent interim Child Arrangements Order to allow her to see the child pending the final outcome of the UK proceedings. IMD successfully argued that, regardless of the return of the child to the UK under the Hague Convention, the mother should be allowed unsupervised overnight contact with the child. We were delighted to be able to secure her contact with the child for Christmas and she said that it was the best Christmas gift she could have wished for. The outcome of the application for the relocation is pending.
S v V - We currently represent the father in Child Arrangements Order proceedings issued by the mother in relation to variation of a UK order made in the face of numerous other international proceedings. He is an Italian National who has been living in France for the last 20 years and the mother is a Lithuanian national. The child is now 11 years old and proceedings concerning the child have been ongoing in various jurisdictions for the majority of the child`s life. Contested divorce proceedings including child arrangements took place in Monaco. The French Court and authorities were also involved, and various proceedings had been ongoing between parties since 2013 in France and Monaco.
The parties’ divorce was pronounced in Monaco. Thereafter, in December 2020, the mother submitted an application to relocate to England with the child, and the relocation took place in June 2021. Upon relocation, the she lodged a child arrangement order application, seeking to register a judgment made in Monaco and to vary the same in respect of the contact arrangements between the father and the child. The father seeks for the child’s return to Monaco.
Due to the parties’ mutual allegations and the associated international elements, various authorities and courts that have been involved in the case, the local authority has become involved with the family and a guardian has been instructed to represent the child in the UK proceedings. At present, these proceedings in England are ongoing and the outcome of the professional reports regarding the family are awaited.
P v P - We have acted for the Respondent Husband in relation to the financial remedy proceedings in the UK. The parties had various assets in the UK and Romania consisting mainly of the portfolio of properties but conduct issues were raised by the Wife due to a business of the Husband over which she had lost control and her allegations of dissipation of assets. The value of assets excluding the business were in a region of £3 million.
K v K - We act in financial remedy proceedings for a wife who is a Polish national. The matter's complexity mainly comes from a dispute between the parties around land in Poland. Its value was initially in dispute but was then assessed by a joint expert to be in the region of half a million pounds. The total assets in this case are estimated to be worth over £1 million. The land in Poland is a subject to contract with a third party and is being leased as a photovoltaic (solar) farm. The division of the land to achieve an equal share of the assets is complicated due to the contract in place and plans for the future use of the land. Currently the parties are awaiting a final hearing but efforts are being made to reach a settlement with the aid of alternative dispute resolution and in order to save the parties money and avoid further delays.
R v O - We acted pro bono and worked together with a law firm in Poland to ensure that the Costa Rican Mother regains access to her child. The Mother's only child was abducted from the UK in 2014. The Mother was successful with the abduction case and the UK family courts ordered the return of the child. The orders were recognised in Poland but unfortunately due to various issues with the Mother's immigration status and court's delays in Poland, the orders were never enforced. The Mother was facing removal from the UK and prospects of never seeing her child again. We have corresponded with various courts in Poland dealing with international abduction matters and we decided that an application for contact should be issued rather than any proceedings for further enforcement of the orders, as the Mother had not seen the child for around 7 years. At the same we secured the Mother's stay in the UK making successful outside of immigration rules application to extend her stay. We now receive regular photos from the Mother with her daughter, as face to face contact is taking place. We helped to secure an order of the Polish courts for the Mother to see the child regularly in person, whilst when she instructed us she was facing a prospect of never seeing her child again and being deported to Costa Rica.
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