It has become increasingly common for couples planning their wedding to enter into a formal agreement setting out what they each have at the start of their relationship and how they will divide their financial resources if they separate. These agreements known as Pre-Nuptial agreements or Pre-Marital agreements set out what the parties propose to happen in the event that they subsequently split up.
A great deal of publicity has surrounded high profile break ups and these agreements have in the past been seen as only for the rich and famous. However, people are beginning to see pre-marital agreements as a way in which they can protect their assets and try to provide some certainty in their future marriage.
Back in 1998 the Government produced documentation "Supporting Families" which set out important safeguards that the Government felt should be met in relation to making a pre-marital agreement as effective as possible, for example, if there was a child of the family provision had been made in the agreement for children, including children who are born after the agreement; that there was separate independent legal advice; that there was full financial disclosure by each party; that there was no undue pressure and time for reflection before the actual wedding day.
Many couples take the view that a pre-nuptial agreement is too clinical and at odds with the romantic nature of marriage, which for so long has been regarded as a partnership of equals. However, there are many good reasons why couples enter into Pre-Nuptial agreements. For instance, it has been said that entering into a Pre-Nuptial agreement setting out that each party will go away from the marriage with what they brought into it, is a clear and unequivocal statement that one party is not marrying the other party for their money, but for love.
There are also an increasing number of second marriages in which either or both parties bring in assets which they wish to keep separate either for themselves or for their children from previous relationships. Drawing up a Pre-Marital agreement coupled with properly drawn up Wills, with the benefit of legal advice, is the best way of protecting the assets that each party brings into their marriage and recording their intentions as to how those assets (and any later acquired assets) are to be divided if the marriage breaks down.
The leading 2010 judgement in the Supreme Court which upheld a Pre-Nuptial agreement, stated that the Judges “should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.” Cases in which it will not be thought “fair” will now become increasingly rare.