Prenuptial Agreements – Friend of Foe?

When we launched our new dating service, we were determined to provide our members with first class advice and support. Many of those joining OnlyDating will be divorced/separated, and we appreciate that for many a Prenuptial Agreement may be something they might consider should (as we hope) their relationship progresses towards a wedding 🙂

We are really grateful to Family Law Partners for this really clear advice.

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We do not insure our homes in the hope we have a fire or our cars hoping we will crash.  Similarly you do not marry hoping it will end in separation and divorce; just as with a fire or crash you will want some certainty that you are protected.  Think of it as an “insurance policy” to rely on.  Your legal costs in preparing the policy are akin to the premium.  You and your betrothed write the terms of the policy, the policy a pre-nuptial agreement. You are simply managing the risk associated with the breakdown of a relationship .  With the divorce rate of second marriages increasing  a pre-nup NA is nothing but smart financial planning so don’t be afraid to at least consider one should you be thinking of walking down the aisle  for the first, second or third time. Marriage is not just an emotional and physical union, it is also a financial one. If you do not plan and it goes wrong it can be very costly both financially and emotionally

One of the most common questions asked is ‘Is a pre-nup really for me?’.  The answer may be ‘No’ if both parties are young, entering into their first marriage, of roughly equal earning capacities with an asset base that is going to consist of simply the matrimonial home. Importantly there may be the hope and expectation of a family.  Even so, if there is a disparity in positions the question must be asked what happens if the relationship breaks down?  What is very clear is they are no longer the domain of the rich and famous..

 Someone who has worked hard and managed to save say £20,000 or brings a property into the marriage  has every right to be as  protective of their hard-earned nest egg as someone who has millions

So who are they for?  If you tick one of the boxes then you ought to consider one:-

You have assets such as a home, pension or shares
You own all or part of a business
You expect to receive a significant inheritance after the date of the marriage
If you have children and/or grandchildren from a previous marriage
One of you is much wealthier than the other One of you is much older or younger than the other
One of you will be supporting the other through education or retraining
You have relatives or loved ones who will need to be taken care of, such as elderly parents
You are pursuing a career  in a potentially lucrative profession
You could see a big increase in income, perhaps a business is taking off or an investment is going to come good. You are a business owner and either you or your fellow directors would like to ‘ring-fence’ as far as possible the assets of the business being dragged into any subsequent divorce proceedings.

With this in mind let’s look at the benefits of a pre-nuptial agreement.:-

So, what can a pre-nup achieve?  By way of example it can:-

  • Protect your separate property
  • Set out and define ownership of all or part of a business
  • Seek to protect inheritance prospects
  • Define what property is jointly owned
  • Reduce conflict and save money should the worst happen
  • Clarify special arrangements between you, and
  • Establish ground rules for deciding future matters and events. Address what should happen to debts

There is always the awful thought of  raising this with your partner without causing them concern about your love and commitment  for them.    Fear not, making a pre-nup may actually strengthen your relationship. While people often imagine that negotiating a pre-nup leads to conflict, communicating about money matters can actually improve the quality of your relationship and model good communication going into your marriage. One of the main irreconcilable differences leading to divorce is finances.  Talking frankly about money and property can eliminate misunderstandings that might otherwise arise.  You both can get on the same page at the beginning so that the issue does not pop up and cause an argument later on.  Remember that sooner or later, you and your partner will be discussing money.   Don’t assume the process of discussing the terms needs to be difficult.  Agreed, there may be some uncomfortable issues but start by mapping out what you both want to achieve, then ask your lawyers to help you put that into an agreement.  The Collaborative Law process (where the parties and lawyers work together rather than against one another) is ideally suited to dealing with the discussions. 

Is it all good news?  Not entirely…  You need to be aware of the some issues that may arise:-

  •  Let’s face it, a pre-nup is not romantic; but we must remember that marriage is a financial partnership as well as a romantic one, so if you feel that discussing property, finances, and the possibility of divorce, will mar an otherwise beautiful time of your lives, a pre-nup may not be right for you.
  • The issues covered in a pre-nup will probably arise sooner or later in your marriage: money management, property rights, responsibility for debts, and heaven forbid divorce decisions. Making a pre-nup gets you to confront many of these issues now, at a time when your relationship may still be new and untested.  Discussing what goes into the agreement could be unpleasant and stressful, leaving you with bad feelings about the relationship. If now is not the time to make a written agreement, you may be able to make a contract after you marry (a Post -nuptial Agreement)
  • Whilst you may want to include some provision for child support this cannot commit both of you or where a child’s main home should be a PNA. The court has the final say in these matters at the time of the marriage breakdown should circumstances change and agreement is not possible.. 
  • A court can set aside any provisions it finds to be unfair or unjust. 
  • A pre-nup cannot provide for  every single issue  such as who undertakes the household chores, where the parties are to holiday, or what school the children should attend.  Pre-nups are designed to address, in the main,  financial issues that will arise  on separation or divorce. 

Whether to enter into a prenuptial agreement or not is a very personal decision.  Each individual and couple is unique. Therefore, you should base your decision on your own circumstances. 

So, what are the next steps. First, you need to sit down with your partner and reach an agreement about what, in general, you want the agreement to say and include; draw up a list of assets and talk about your proposed intentions, giving reasons for your proposals to let your partner know why you are suggesting such provisions. Not only will this ease any ill feeling but it may also save you money on legal fees.

Next, hire separate lawyers. To help ensure the agreement is legally enforceable both of you need to instruct your own lawyer who will act in your respective best interests. Both parties must fully disclose all their assets. If it turns out either person has hidden something, a judge can overrule the agreement.

It is good practice to have the agreement agreed and signed 21 days before the big day to avoid later arguments of coercion. Whilst this time frame isn’t always possible it is a good target to aim for.

A prenuptial agreement is not something to feared, if you and partner are able to work together it will be something that will serve to protect both of you in the future should you need it – although let’s hope it will remain safely in the bottom draw of a cabinet gathering dust for ever more or until such a time that you wish to re-visit it when circumstances have changed, such as the birth of a child.

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If you have further questions on pre-nups, I know Lucy will be happy to help. Details of our new on-line dating site can be found here.

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About onlydads

Single Dad living near Totnes in Devon. I founded www.onlydads.org in 2007 and live with my daughters Priya, 14 and Anya 11. I write about single parenting, work, overcoming trials and tribulations and sometimes not overcoming trials and tribulations.
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2 Responses to Prenuptial Agreements – Friend of Foe?

  1. There’s only one thing I’d like to add to this excellent piece, and that is that couples may find it more constructive and more natural even to start the prenup process off by getting the same legal information from one person. A solicitor-mediator is ideally placed to provide that service. And seeing one person together at the outset is arguably far more natural for a couple about to marry than to go and see separate lawyers at the off. A mediator can help them consider the options, help them negotiate and will always recommend that they take advice, at the very least before a final mutual proposal is made. It would then be up to lawyers to draft the document into an agreement. The mediators fees would be shared, and mediators are arguably more time efficient in meetings than two lawyers ( and I should know because I work as both). So the overall package is likely to be more sympathetic to impending nuptials than a process involving two lawyers from the off.

  2. ThinkingFox says:

    I’d like to see pre-nups including agreements on what should happen with contact and provision for any future children. Money isn’t everything and yet it’s all we ever hear about when the subject of pre-nups comes up.

    The irony of this is that you can have as many pre-nups as you like but if you haven’t factored in the kids then you’ll be in the same trenches the rest of us have been in, where children are used as weapons to try and gain more money…

    Just a thought. As you were…

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