Families and divorce
Getting married? Your guide to prenups.
If you’re getting married, a prenuptial agreement can help you protect your assets and secure your future.
A prenuptial agreement is like an insurance policy - a legal document which allows you and your partner to agree on a fair and appropriate arrangement for what you would want to happen if your relationship were to break down. It’s a formal agreement about financial arrangements on divorce, so you both know where you stand. Like an insurance policy, the hope is you never need it, but you have the peace of mind that it’s there if you do.
- Do I need a prenuptial agreement?
- What are the benefits of having a prenuptial agreement?
- Is a prenuptial agreement ‘legally binding’?
- How can I get a prenuptial agreement?
- When can I get a prenuptial agreement?
Do I need a prenuptial agreement?
If you are getting married and you have assets you want to protect, a prenuptial agreement may be appropriate. You might want to think about taking advice on a prenuptial agreement if:
- You are bringing wealth into a marriage
- You have inherited wealth, or are due to inherit during the course of your marriage
- You have children who are due to marry, and want to protect your family’s wealth for the future
- You are getting married and you own a business and want to protect your business assets
- You have been married before and want to ensure your children’s inheritances are protected
- You are the beneficiary, settlor or trustee of a trust, wanting to ensure that trust assets are protected
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What are the benefits of having a prenuptial agreement?
Prenuptial agreements are an effective way of protecting wealth brought into the marriage, inherited wealth and business assets. So, if you’re planning to pass wealth down to your children or grandchildren, consider a prenuptial agreement. They can help to strengthen other estate planning arrangements, and protect trust assets – which are not beyond the reach of the English family court.
Prenuptial agreements provide a pre-agreed plan of how matters will be dealt with on divorce – aimed at avoiding future disputes, potentially expensive court proceedings and protracted negotiations, and with a view to providing as much certainty as possible as to a final resolution.
Is a prenuptial agreement ‘legally binding’?
Prenuptial agreements are not strictly binding but the courts can, and do, uphold them. If the agreement is freely entered into by both parties with a full appreciation of the implications, the Court should hold the parties to the agreement unless it would be unfair to do so in the circumstances.
Fairness is key if you want the agreement to hold up in court. A prenuptial agreement won’t be upheld if it leaves a person (or any children) in a position of financial need.
How can I get a prenuptial agreement?
Both parties should take separate specialist legal advice (you can’t share the same lawyer). This ensures there can be no conflict of interest and that both parties can be independently advised on the implications of the terms of the agreement. Your lawyer can guide you through the terms of the agreement, as well as advising you on how to ensure that the agreement is as robust as possible in protecting you.
When can I get a prenuptial agreement?
Don’t put off making your prenuptial agreement. Discussions should take place as early as possible, and ideally before you get into the busy period leading up to your marriage. There’s no absolute rule but the agreement should be signed at least 28 days before the date of your marriage. It’s best to get them done and dusted earlier, so that you can focus on the more fun wedding preparations!
If you don't do it before you get married, it is possible to make a post nuptial agreement - so it's not too late at any time!
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Partner - Families and Divorce, Chelmsford officeMeet Joshua
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