The fact that we specialise in family law at Higgins Miller means that we are experts when it comes to guiding couples through the process of getting divorced. Like some of the other things we deal with – such as wills and probate and domestic violence – a divorce can often be a traumatic and stressful event. We always work to keep people out of courts and guide them toward an amicable agreement when they are getting divorced, and one thing that we often notice is how much easier things might have been if the couple in question had come to us to ask about prenups.
Prenups – or prenuptial agreements to give them their correct name – are agreements which couples enter into before they get married. They take the form of a contract which sets out what will happen to assets which each party brought into the marriage in the event of a divorce. If you are getting married for the second or even third time, for example, you might want to ensure that your home remains fully in your possession following a divorce in order to guarantee that you can pass it on to your children. Perhaps the most important thing to note about prenups is the fact that they are not, at the time of writing, legally binding in UK law. Despite this, however, prenups can still be referenced by a court when it comes to agree a financial settlement following a divorce, but only if the prenups in question have been drafted extremely carefully in order to ensure that they include everything that needs to be included and nothing that shouldn’t be included. In addition to this, prenups need to be based on full financial disclosure from both parties and to be signed and witnessed by independent witnesses.
The overall purpose of prenups is to set out the financial rights and obligations of each party in the event of a divorce. This is done by setting out details such as how property and assets will be divided post-divorce and what level of spousal support will be paid. Although prenups are not legally binding our experience – alongside case law – has taught us that a judge reaching a judgement on a financial settlement post-divorce will generally uphold the details of a prenup as long as it meets strict criteria. These criteria include the following:
- Both parties must have entered into the agreement of their own free will without being placed under any duress
- Both parties must have a clear understanding of any prenups and of the implication of the prenup for their financial status following a divorce
- The wider financial circumstances of both parites must have been disclosed prior to the prenups being drafted
- The prenup needs to have been made at least 28 days before the wedding
- Both parties need to have received independent financial advice before entering into any prenups
- The prenup should not be drafted in a way that will prejudice any children the couple has or may have in the future
- Prenups need to meet the needs of both parties and to be drafted in a manner which is contractually valid
Judges are fully within their rights to depart from prenups when they feel that the agreement is unfair to either party of prejudicial to any children involved. The advantages of creating prenups are as follows:
- They help to foster an atmosphere of trust by setting out clearly and transparently the assets which each party is bringing to the marriage. In doing so they help to minimise the chances of confusion or disputes at a later date
- Prenups reduce the financial risk of entering into a marriage, particularly if that marriage ends in divorce at some point. In some cases the creation of a prenup may enable a marriage to happen which would otherwise have been considered too risky by one or both of the parties
- Prenups help to minimise any disputes which might arise during the divorce process. If there is any disagreement over the division of assets post-divorce, parties will be able to point to the prenup and what has already been agreed
- From an individual point of view, prenups avoid the possibility of having valuable assets which were entirely yours prior to marriage being divided on a fifty-fifty basis following a divorce
The disadvantages of prenups include the fact that some people regard them as being unromantic, and may refuse to sign a prenup on that basis, and the non-legally binding status of the document. This last point is particularly important if you’re thinking of writing a prenup of your own. The legal strength of prenups is dependent upon how carefully and correctly they have been drafted, and this can mean dealing with complex issues such as property, savings, investments, shared pensions, business interests, debts and future inheritance. Legal expertise is required to ensure that all issues of this kind are dealt with properly, and in a way that a court in the future will recognise as being fair and balanced. The experts at Higgins Miller can work with you to ensure that any prenups are drafted correctly, cover all of the topics needed and will be regarded by a judge as treating all parties fairly. We will also make sure that you choose the right independent witnesses, who need to be over the age of eighteen and cannot be family members. When you work with Higgins Miller you can be certain that any prenups you create are entirely fit for purpose.
If you’d like to find out more about prenups please call us on 0161 429 7251 or email us at [email protected]. We’ve recently passed our Cyber Essential accreditation, something which demonstrates our forward-thinking attitude and determination to remain ahead of the competition. The first 20-minute appraisal is provided free of charge, and we’ll give you the first appointment for a fixed fee, so you don’t have to worry about how much our advice is going to cost. If you want to explore our wider charging system then please take a look here.