Marriage: The Later Years – Have you considered a prenuptial agreement?.

Judith Fitton and Alice Barrett provide an insight as to ways you can protect and future proof the assets you may have built up previously. See the article (pages 34-35) and much more in the final edition of The South East Independent Spring issue

There is often a misconception that prenuptial agreements are simply for the ‘rich and famous’. However, if you are getting married in later life or perhaps this is a second marriage, then there are important reasons why you should consider entering into one.

What is a prenuptial agreement?

A prenuptial agreement or ‘prenup’ is a written legal agreement made prior to a marriage or civil partnership which sets out how a couple wish their assets to be divided in the event that they later separate or divorce.

The agreement will be a contract and can cover whatever issues the couple would like, including property, pensions, savings, inheritance and business interests.

They are not automatically legally binding in England and Wales, but will be taken into account by the judge during a divorce and if drafted according to the prescribed safeguards, could even prove to be a decisive “knock-out blow.”

To ensure that the agreement has the best possible chance of being enforceable, it must be entered into at least 28 days before the wedding (so no dramas at the church door!), both parties need to be honest about their assets, the agreement must be fair and it must meet the basic needs of both.

Why consider a prenuptial agreement, particularly if marrying in later life?

  • Protection. Couples marrying in later life are more likely to have built up money and assets in their own right. Often clients assume that pre-marital assets cannot be touched, but it is important to note that they can become ‘matrimonial’, so could be shared in the event of divorce. A prenup can therefore ring fence certain assets that you wish to protect.
  • Clarification. Many couples find speaking about finances uncomfortable and it can seem unromantic to discuss what would happen if the relationship was to end, but having an honest dialogue at the start can help to provide clarity and avoid a stressful, costly and protracted divorce down the line.
  • Certainty and security for the future. A prenup can help to protect inheritance for children from previous relationships. It can also provide comfort to children or other family members who may be unsure about the relationship and show them that the marriage is happening for the right reasons, particularly where one party is much wealthier.  
  • Peace of mind. Having an agreement doesn’t mean that there is anything wrong with the relationship – it is there ‘just in case’ and to bring peace of mind to both parties. If circumstances change, it can always be reviewed.

The contents of this article are intended as guidance for readers. It can be no substitute for specific advice. Consequently we cannot accept responsibility for this information, errors or matters affected by subsequent changes in the law, or the content of any website referred to in this article. © Mundays LLP

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