All my worldly goods… A guide to pre-nuptial agreements

The date is set, the venue booked and the catering arrangements have been finalised. Is there anything else that you should add to your list of preparations for a wedding day? If you’re planning a first, second or subsequent marriage, you may want to add to that checklist the preparation of a pre-nuptial agreement – but why?

A pre-nuptial agreement is a written contract between two people who are about to marry. It sets out the terms of possession of assets, treatment of future earnings, control of the property of each person and potential division if the marriage is later dissolved.

For centuries, English and Welsh courts refused to acknowledge the validity of pre-nuptial agreements, as they were considered contrary to public policy that married couples came together for the good of the marriage. The courts felt that this wouldn’t happen if couples entered into pre-nuptial agreements. But with the rise of people getting married later in life and second and subsequent marriages, many people are bringing into these marriages wealth and assets that they have built up over many years or inherited from a former spouse or other relatives. They may have had children from a previous marriage or relationship and may want to protect their assets for those children. The most effective way they stand a chance of protecting these assets is by entering into a pre-nuptial agreement with the person they are due to marry.

Pre-nuptial agreements are still not binding but since 2010, the case law in England and Wales has evolved to give more weight to them. However in order for these agreements to stand a chance of being enforced, certain conditions need to be met

• the agreement needs to be signed at least 28 days before the marriage
• both parties need to have independent legal advice
• both parties need to give complete details of their financial situation to each other
• the agreement should be professionally drawn up.

No guarantee can be given that a court will uphold a pre-nuptial agreement on the breakdown of a marriage. However without one, the person trying to protect their assets definitely won’t be able to do so.

Where someone has a child who is due to get married, they may want to give consideration to that child entering a pre-nuptial agreement, particularly where that child stands to inherit significant assets or wealth, or may be the beneficiary of a trust. Even in such a situation, the points I have made above still apply.

Another tool that can be used to protect one’s assets and wealth, but this time on death, is by executing a new Will. On marriage, any existing Will is revoked and a new one will need to be made. This is a useful tool, ensuring that your estate goes where you want it to. It can also be used to ensure effective estate management and tax planning.