There’s a common misconception that pre-nuptial agreements aren’t worth the paper they’re written on as they are not legally enforceable, or that they are simply a tool for the rich and famous to manage multimillion dollar affairs. “Pre nups” are of course popular in Hollywood, but they can be usefully employed by anybody who is getting married and has assets to manage.
Like any type of ‘insurance policy’ we take out, we hope that the event is unlikely to happen. But the act of planning, providing cover and making provisions may be viewed positively as a way of giving all parties clarity, confidence and reassurance about every eventuality. In all cases, you’re covered and there is protection to minimise your personal and financial loss.
While pre-nups aren’t legally binding, a Supreme Court decision in 2010 gave them far more weight in law. In February 2014 the Law Commission recommended that pre-nuptial agreements should be legally binding in divorce settlements once the needs of the separating couple and any children have been taken into account.
There are factors which should be satisfied for there to be the strongest chance of a Nuptial Agreement being upheld – these are detailed alongside a new advice video I’ve created to help couples plan ahead on our Nuptial Agreements and Asset Protection page.
While it might feel like an awkward and unromantic topic of conversation to raise with your partner prior to a wedding, pre-nuptial agreements can be approached as a positive thing if dealt with in a friendly and cooperative way.
Pre-nuptial agreements can be helpful for anyone with assets, whether that’s personal assets, such as a house or business related such as a family company. In this blog, I share examples of some of the most typical cases that we work on/with.
1) To ringfence gifts
Recently, I have worked on a couple of pre-nuptial agreements that have been intended primarily to ringfence gifts made by parents as part of succession planning. Our clients often have family or generational wealth, and careful financial planning is seen as standard good practice. I also highlighted this topic in my recent response to the annual budget (2021) speech around preserving family wealth on divorce.
2) Previous divorce and want to avoid acrimony
Our clients who have previously been through the divorce process often seek a pre-nuptial agreement prior to a subsequent marriage as they have experienced first-hand how acrimonious divorces can be, and want to prevent any risk of this happening again.
3) Second marriage later in life – focus on provision for children
I also speak regularly with clients who are approaching a second marriage older, wiser and with grown up children. The focus for these clients is on providing provisions for their children, many of whom are adults themselves with financial independence. Their parents want to plan ahead for a cleaner solution in later life.
4) Jurisdictional issues
We are recently coming across more and more couples with joint citizenship or children raised in situ with family overseas or who have assets abroad. I have recently acted on a pre-nuptial agreement involving a German wife and an English husband with substantial assets overseas.
5) To avoid airing dirty laundry in public
Kim Kardashian and Kanye West’s recent divorce has been widely reported in the media, but the fact they entered into a pre-nuptial agreement has resulted in a smoother process and less acrimonious split and avoided sensitive information being splashed over the tabloids. In the absence of a pre-nuptial agreement, there is a greater risk of your dirty laundry being aired in public if you are in the public eye.
6) Protecting business assets
Another common case we work with are couples with business interests they wish to manage separately to the marriage assets. My colleague Silk Family Law partner Wayne Lynn wrote this blog back in 2019 on advising divorcing business owners, whose spouses are shareholders or partners – even where they play no role in the day to day running of the business – having taken family income in a tax-efficient manner. He described how untangling the business relationship can often more problematic than dissolving the marriage itself. Valuing the business and each party’s share, considering tax consequences and persuading one party to transfer their shares can be an expensive and diplomatic minefield. Setting all this out on a pre-nuptial agreement while the couple are in an amicable relationship can avoid these issues.
If you have any questions about nuptial agreements and asset protection, or wish to discuss your options, contact me, Matthew Miles, by email at firstname.lastname@example.org or on my mobile 07593 583785.
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Images courtesy of Nathan Dumlao (header) and Diana Parkhouse on Unsplash.