Is a prenuptial agreement worthwhile?
More and more couples are considering the benefits of drawing up a prenuptial agreement but what does the process involve and is it worth it?
Throughout most of 2020 weddings proved all but out of the question with regulations requiring that ceremonies should only take place in exceptional circumstances, for example where one party is seriously ill and not expected to recover. Even in 2021, for now weddings can only be attended by a small number of people, in a COVID secure venue or public outdoor space. Although with the easing out of lockdown the Government’s roadmap has given provisional dates for when attendees at weddings can increase, many who were planning their special day are still considering postponing to next year or beyond.
With these unplanned delays, couples may well decide that this is an ideal opportunity to consider a prenuptial agreement. Ordinarily most couples may not have even considered this to be necessary or felt it was too unromantic to bring up the subject with their future spouse. However, the pandemic has certainly taught everyone that no one can predict what may happen in the future and so many couples may now be giving this more substantive thought.
It is important that proper time and consideration is given to the production of a prenuptial agreement and the contents of the document. This should be done at the earliest opportunity and well in advance of the wedding day. Often, couples contact their lawyers a few weeks before the big day, as they near the end of their wedding preparations, without appreciating that the process of entering into a prenuptial agreement should ideally start several months in advance.
A prenuptial agreement needs to be signed by both parties a minimum of 28 days before the wedding ceremony (if not longer) to avoid any suggestion that one party has been put under undue pressure to enter into the agreement. It is also important that both parties provide full and frank financial disclosure of all assets, debts and income, to ensure both parties are aware of each other’s finances at an early stage and to avoid any surprises further down the line. It can take time to collate this financial information, especially in relation to pensions as pension schemes can take months to provide valuations.
Discussing the terms of the agreement, such as how assets are to be held during the marriage and whether the parties will have a joint bank account, can take time and needs to be managed sensitively. To save costs, ideally the parties will have discussed and agreed the broad terms of the prenuptial agreement before contacting a solicitor to prepare an initial draft. However, each party will need to have independent legal advice about the effect of the terms of the agreement before signing it. Often the party who is the driving force behind getting the prenuptial agreement in place will offer to cover all legal fees.
Having ample time to discuss important issues, such as each party’s financial expectations of the marriage and what will be shared or protected can really benefit a couple. It encourages openness and sets the tone for honest, clear communication which can be fundamental for a successful marriage. Most prenuptial agreements will state that the wedding ceremony should take place within 12 months of signing but if a couple’s wedding has to be delayed for any reason, it is a relatively simple matter to extend this time period.
In the courts of England and Wales prenuptial agreements are becoming more commonplace and if the document is drafted by a specialist family solicitor, adheres to certain requirements, and is fair and provides for both parties’ needs, the parties should expect to be held to the terms of the agreement by the Court if a dispute arises in future. The law in this area is forever changing so prenuptial agreements will also have built into them review clauses to make sure the document remains relevant as the marriage evolves over time.
For more information and advice on this subject, please get in touch with the family team at Barker Gotelee to organise an initial consultation. Appointments can be made by calling 01473 611 211.
Amanda Erskine is a solicitor in the Family department at Barker Gotelee Solicitors in Suffolk.