Pre-nuptial agreements

Written by    Last updated: June 6, 2006

It might not be the most romantic part of your wedding preparations, but it’s worth considering a pre‐nup.

The last thing you want to think about in the run‐up to your wedding is divorce. Marriage is all about showing the world that you love each other and intend to stay together forever, so why would you want to even consider what happens if it all falls apart? But it’s a sad fact that one in three marriages in the UK end in divorce. Someone somewhere won’t be living happily ever after.

So it’s a good idea to understand exactly how much of your worldly goods you’re about to endow before you waltz down the aisle. Signing a pre‐nuptial agreement might mean the difference between settling amicably if it all goes wrong and having to go the full twelve rounds over the shared flat, car and savings plan. Hopefully you’ll never need to use yours, but if the worst does ever happen, you’ll be grateful you were prepared.

Reasons for getting a pre‐nuptial agreement

Broaching the subject with your partner may be the hardest part of organising a pre‐nup. Here are some good solid reasons you might suggest:

  • to predict the outcome of any divorce settlement before the marriage
  • to prevent speculative claims following a short marriage
  • to save costs and acrimony on divorce
  • to protect ‘family’ property which is intended to pass down through generations
  • for the independently wealthy who will never have to rely on each other for financial support
  • for those marrying later in life or for a second time, who will not have children
  • for parties of different nationalities or who hold significant assets in another country, an agreement to conduct divorce and financial proceedings elsewhere may be appropriate
  • to limit the claims of a second (or third!) spouse, and so protect the needs of children from previous marriages.

Are they legally binding?

The short answer is no. Unlike in continental Europe and North America, the UK has been slow in making pre‐nups legally binding. But if they are sensibly drafted and follow the appropriate guidelines, then they are likely to be upheld by the courts.

Caroline Wright, a solicitor in the family law department at Boodle Hatfield Solicitors, says: “Pre‐nuptial agreements aren’t enforceable but there is every indication that in this country we are slowly moving toward the European and North American position, where properly drafted pre‐nuptial agreements are more or less determinative in divorce proceedings. Nevertheless, they are taken into account by our courts now and are influential provided the guidelines are followed. There is therefore every reason to have one.”

To carry weight with the courts, a pre‐nuptial agreement must be based on the following:

  • you and your spouse must disclose full details of your assets and income to each other before signing
  • you both need independent legal advice
  • you should both have enough time to consider the terms of the agreement (for example, more than three weeks before the marriage)
  • the agreement needs to allow for the arrival of children.

Are they likely to be binding in the future?

The Government (in its consultation paper, Supporting Families, November 1998) raised the issue of whether to make pre‐nuptial written agreements about the distribution of money and property legally binding. It has even mooted the possibility of their registration ‐‐ so be aware that the Inland Revenue may be able to plough through the financial disclosure!

It seems that provided they do not attempt to restrict the court’s powers, these agreements are influential. If the above guidelines are followed, then a pre‐nup is more likely to be worthwhile.

Financial rights if you’re not married

Remember that if you’re a couple and not married, don’t expect to have the same rights as married couples. No matter that you’ve been together for 20 years ‐‐ the idea of common law marriage is only recognised in very limited circumstances. It’s actually a common misconception that a long‐term non‐marital relationship creates a common law marriage, with similar legal rights, duties and privileges as a legal marriage.

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