Premarital agreements (Pre-nuptial agreements) – a good idea? by Sara Barnes | Blogs | The Law House


Premarital agreements (Pre-nuptial agreements) – a good idea? by Sara Barnes

By in All Blogs, Family Law Category on December 18th, 2013

Over the weekend, I read an interesting, perhaps surprising article in the Telegraph by Louisa Peacock condemning those who feel the need to enter into a pre-nuptial agreement.  She argued that one is missing the point of marriage by setting out who gets what if and when it all goes wrong and the parties separate.  She argues that marriage is not a business deal, that it is a commitment for life and that if a couple need to split they should have enough common sense and respect for each other to split amicably, sharing the assets fairly based on the circumstances.

I wonder whether this is perhaps a naïve view given the divorce rate in the UK. More and more marriages are ending in divorce.  For those of us who are still married and those of us who have gone through a divorce it was with the intention that it was a commitment for life.  However, things can change, life can take a different twist or unforeseen events can occur. 

Divorce when you reflect on it is a sad affair even if it was the right thing to do.  The average age for those getting married for the first time is on the rise, we are getting  all married later, and as such it is more likely that people will have accrued wealth in their own right by the time they marry.  A first marriage may fail, and for some, not all, a second marriage might mean that we are in a much better financial position than they we were previously. Is it unreasonable to want to protect assets preserved from a previous marriage for ourselves and/or our children.  One could even go so far as saying that by not having a pre-nuptial agreement you are deterring people from marriage all together!

Pre-nuptial agreements can ensure that each person’s assets remain theirs if the marriage fails, and will usually set out each party’s position if the marriage breaks down. Currently, a pre-nuptial or pre-marital agreement is not binding in English Law.  However, the tide is turning following recent case law indicating the courts increasing willingness to take into account agreements couples have reached setting out their intentions when they embarked upon the marriage.  A fairly recent Law Commission report recommended that assuming appropriate safeguards are in place, pre-nuptial agreements should be enforceable as a contract. So watch this space.

No one can say that a pre-nuptial agreement is in any way romantic and that some may view it as showing a lack of trust in their partner or faith in their relationship. However, it is important to bear in mind that a pre-nuptial agreement is not predicting a separation in the future; it simply sets out what will happen if the marriage breaks down and ends up in divorce court.  

Pre-nuptial agreement can be very detailed and take into account such factors as what happens if you have a child together. It can reflect the period of marriage so that after many years of marriage one party does not walk away from it in the same position as someone who has been married a matter of months. The important thing is perhaps to make sure that you get good legal advice and an experienced solicitor drafting the documentation.

If you are considering entering into a pre-nuptial agreement, it is extremely important for you to obtain  independent legal advice well in advance to ensure the agreement reached is  fulfils certain criteria and to maximise the possibility that it will be taken into account by a court at a later date.

If you are considering marriage and wish to protect your existing assets, please contact me Sara Barnes, for some good practical advice and assistance, on 01245 809 556 or sbarnes@thelawhouse.com