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Pre-nups the facts

5.05.2015

This is a concept that doesn’t sit comfortably with most people.  The very idea of a pre-nup is in stark contrast to the romance of finding that one person you want to share the rest of your life with.

We spend our whole lives planning for and protecting our future and/or the future of those around us that we love.  A pre-nup is really just another way of protecting your future but this time it provides protection against any unforeseen circumstances which may arise.

If you choose to enter into marriage then your partner will, under English Law, be entitled to a share in the ‘matrimonial assets’; these will include any assets you own together but also any assets you may own separately and have brought into the relationship such as family inheritances, businesses, savings and investments etc.  The starting point when establishing how these assets should be divided is that of equality.  Just because some assets have passed down through family generations, does not automatically mean that they are excluded from the pot of matrimonial assets and/or protected from being split between you and your spouse upon divorce.

Up until recently there was much sceptism as to how much weight a pre-nup would hold.  Now however, the use of pre-nups is becoming much more widespread as those entering into marriage wish to protect their assets.

In a pre-nup, you can clearly set out before the marriage your intentions in respect of both yours, and your future spouse’s assets.  Within a pre-nup you can provide clear stipulations setting out how your inherited assets, joint assets and any assets you perhaps build up during the course of the marriage, should be treated should your marriage unfortunately breakdown.

As with all things in law, the existence of a pre-nup does not entirely prevent one half of a couple issuing any financial proceedings at court upon separation if they are intent on seeking further financial provision over and above that which is provided for within the pre-nup.  It will then be for the Court to decide whether the terms of the pre-nup should be upheld or varied.

The likelihood of the pre-nup being enforced will ultimately depend on how well it has been drafted.  Specialist matrimonial solicitors will be all too aware of the various safeguards which have to be met in order for a pre-nup to hold the maximum weight possible should it ever need to be relied upon.  One of these fundamental safeguards is that of ‘needs’.

It is important that, particularly in the event of a long marriage, the financial needs of both husband and wife, (upon separation), are met and that neither one should find themselves in significant financial hardship upon separation in comparison to the other.  This also relates to any children born into the marriage.  This is an important consideration when drafting a pre-nup and one which regularly needs to be reviewed during the course of a marriage which is why pre-nups are often referred to as ‘living documents’.  It is not uncommon for addendums to be created during the course of the marriage to ensure that the original pre-nup reflects a fair and appropriate outcome in light of any significant changes which may have come to fruition during the course of the marriage. 

Julie Hobson can be reached at [email protected]

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