Pre-nuptial Agreements in England are often regarded as binding though the court retains discretion as to whether an agreement should be enforced.
The chances of a prenup being upheld by the courts are increased greatly if the agreement has been entered into freely by both sides, each side understands the financial implications of the agreement and overall, the prenup is fair in the way it provides for the economically weaker spouse. Financial provision for dependent children must also be factored into the agreement.
A prenup can set out how you and your spouse will manage your finances during the marriage. It can also specify what you expect to happen should either of you die – although you must make a will to give effect to your wishes for distribution of your property when you die. If there is marital property that’s located abroad you may also need to make a foreign will to deal with those assets.
There is not a “standard” form of prenuptial agreement in England, because in English law marriage does not alter the ownership of property. This is unlike some countries, including many European countries where marriage will create a “community of property” unless there is a pre-nuptial agreement.
Because the question of what is fair varies so much from couple to couple, pre-nuptial agreements have to be carefully drafted to fit individual circumstances.
Example situations where an agreement may be required
- Couples pooling their earnings to purchase a property.
- Couples intending to have a first child, and planning their future finances.
- Where there are children from a previous relationship.
- Where one party is wealthier than the other or has been married previously.
- Where one party is at risk of insolvency due to business downturns or other issues.
- Couples getting married after having already cohabited and considering combining finances.
- Where parents or relatives are contributing to a house or savings fund
Pre-Nuptial Agreements: Frequently Asked Questions
What does Brookman offer?
Everyone’s situation is unique, but we do offer some “standard” types of agreement should your situation come within their scope. If you contact us we will send you our Basic Information Form, and when you return that to us we can do an initial estimate as to the probable cost of preparing a pre-nuptial agreement for you.
We also ask that clients who require a pre-nuptial agreement contact us at least 8 weeks prior to the wedding day so the necessary work can be completed in time. Usually prenups should be signed well in advance of marriage so that there can be no suggestion that one party entered the agreement under duress. Most couples are busy enough anyway in the weeks immediately prior to the big day. However, if you are due to marry in less than 8 weeks’ time you still have the option for us to draft your post-nuptial agreement if required.
Do you offer wills as well?
Yes, we recommend making wills to dovetail with the agreement. As with proposed agreements, we can assess if we can offer a fixed fee for one of our standard wills, or whether more complicated drafting is needed.
Do you arrange insurance and financial advice?
We liaise with independent financial advisors where appropriate, because they are accredited with the Financial Services Authority.
Aren’t prenups unromantic?
You are getting married to signal a long-term commitment and as you might expect, there will be plenty of unromantic decisions to make in the course of your marriage. For some couples without pre-nuptial agreements, the uncertainly of their financial set-up can cause underlying and long-term issues. Isn’t it better to start with a concrete financial plan so both of you know where you stand?
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