The killer question? Will you ask or will you risk it?

A tricky question: during the interlude between your engagement and wedding/civil partnership ceremony, do you risk suggesting a pre-nuptial or pre-civil partnership agreement (pre-nup for short)?

Children playing on the bed

There is surely no better way to drain the romance out of your relationship than by contemplating its failure. Yet there may be good reason to reach agreement now as to how your finances would be dealt with should separation happen:

  • You, or indeed your relatives, may wish to protect family wealth from the claims of a spouse or partner on relationship breakdown. A pre-nup is a way of ring-fencing assets handed down by way of gift or inheritance, and intended for future generations: descendants rather than those who marry into the family.
  • You may have acquired assets before you met your spouse or partner – the fruits of a successful business or career which you worked hard for and regard as your own, to be kept separate from assets acquired jointly during your relationship. It may be only the latter you wish to share on relationship breakdown.
  • There may be great inequality of wealth between you. Given that the English divorce court, at its discretion and depending on all the circumstances of the case, can put everything into the “pot” and divide a couple’s wealth equally between them, the richer party may wish to ring-fence at least part of their fortune.
  • Sometimes one party has been through an acrimonious divorce themselves, or witnessed family or close friends endure legal wrangling over finances when a relationship breaks down. The opportunity to agree settlement terms in advance, when on good terms and capable of calm discussion, may understandably be an attractive option.
  • You may have a child or children from a previous relationship and want to protect funds for them. Arguably assets generated during the previous relationship should be available for them, and not swept from under their feet by a later spouse or partner.
  • If you lead an international lifestyle, as a result of which foreign courts could have jurisdiction over your divorce and financial settlement, you might want a pre-nup to secure the English court’s jurisdiction. This depends on which jurisdiction is potentially the most favourable for you, and you may need to take advice from both English and foreign lawyers.
  • You may prefer the autonomy of drawing up your own settlement, rather than risking a legal battle resulting in a settlement imposed by the court. In addition, a pre-nup can include a confidentiality clause, whereas financial proceedings in court may be open to media reporting and unwelcome publicity.

And reasons for not venturing down the path of a pre-nup? Sadly there are cases where the effort of trying to agree terms exposes cracks in a relationship, such that one party calls off the wedding.
Also, under English law at the time of writing, pre- and post-nuptial agreements are not automatically enforceable. In certain circumstances, and especially if the agreement appears unfair to one party, the court can and does override them. However, there are steps in entering a pre- or post-nuptial agreement which you can take to minimise the risk of this: ensure each of you takes independent advice and gives full financial disclosure, include provision for the terms to be reviewed if your circumstances change significantly, sign the agreement well before your wedding or civil partnership date and, if there is insufficient time before the wedding, enter a post-nuptial agreement instead, so neither of you can claim to have signed under duress.

The laws for non-married cohabiting partners are not the same as those for married couples, and cohabiting couples can enter a cohabitation agreement, sometimes referred to as a “No-Nup”.

Although it is not a legal requirement to enter into a nuptial or cohabitation agreement, we encourage couples to consider making such arrangements in connection with their relationship or marriage.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.