Q. I am getting married on Valentine’s Day. This is my 2nd marriage and I have some assets. I know it’s unromantic but I am worried what might happen to these if the marriage breaks down. How can I protect what I have?
A. As Valentine’s Day approaches people’s thoughts become rather more romantic and marriage proposals and weddings loom large. Whilst I am all for love and romance as a divorce and family lawyer with many years experience I know that there is not always a happy ever after. Failure to plan can be costly and painful. It is always best to plan for this eventuality in the same way as making a Will plans for what will happen on your death.
You can enter into what is known as a pre nuptial agreement. This is an agreement entered into by a couple before they marry which sets out the terms of what will happen to the assets in the event of a divorce. Under the present law of England and Wales a pre nuptial agreement is not binding. This means that a family court can make a different order if an application is made to it on divorce and it is just one of the factors a court may take into account when looking at the circumstances of a case.
However, since a decision in the Supreme Court in October 2010 a pre nuptial agreement properly entered into will have a good prospect of being followed by the court in deciding what is a “fair outcome”. The agreement must be fair both at the time it is entered into and at the time of the divorce. This is because no one can predict the future and a pre nuptial agreement cannot in the law’s eyes be allowed to prejudice the reasonable needs of the parties at the time of the divorce. Any agreement should therefore be reviewed regularly after marriage and you should consider making a post nuptial agreement if there is a change in circumstances. For example you have children or receive an inheritance.
Certain guidelines must also be followed when the pre nuptial agreement is made – it must be freely entered into by both parties and should be signed well in advance of the wedding (6 months as a guide), both parties must have taken independent legal advice and there should be full financial disclosure.
For specialist advice about your particular circumstances call our local divorce and familylawyer Karen Weiner on 01923 521003 or email her on firstname.lastname@example.org