In the seven years since I co-founded Silk with former Bond Dickinson colleagues solicitor Kim Fellowes and barrister Ian Kennerley, I have seen a year on year increase in enquiries about pre-nuptial and post-nuptial agreements.
Those enquiries come not just from younger engaged couples, but also from more mature couples marrying for a second, or subsequent time, who are looking to protect a family business, farm or land should they divorce in the future.
ONS marriage statistics show a significant increase in the numbers of brides and grooms aged 65 over tying the knot – from 7,468 in 2004 to 10,937 in 2014. Almost all (92%) of the brides and grooms aged 65 and over in 2014 were divorcees, widows or widowers, with only 8% getting married for the first time.
During the same period – whilst divorce is in decline for younger couples – older people are bucking the trend, with the number of men divorcing aged 65 and over going up by 23% and the number of women of the same age divorcing increasing by 38%.
Older couples are likely to come to a second, or third marriage, with property, assets, pensions and children. In farming families, there will be undoubtedly be complex ownership issues relating to agricultural businesses that have been built up over generations.
To some people, nuptial arrangements may seem unromantic, but I would argue that they are absolute invaluable in helping to protect farming businesses when those involved are of a pensionable age. Having an open and considered discussion about future division of assets before tying the knot may prevent additional heartbreak in the future should things not work out as hoped.
A pre-nuptial agreement is a legal arrangement made between two people before their marriage, setting out how the couple wish their assets to be divided between them if they later separate or divorce. Some agreements also detail how the couple will arrange their finances during the marriage. A post-nuptial agreement is a similar arrangement drawn up after a couple has married, or entered into a civil partnership.
Such agreements can help to protect wealth or assets brought to a second marriage. Where there are children involved from a previous marriage, pre- and post-nuptial agreements can be helpful as they can ensure that these children are provided for, as their parent would wish, in the event of a subsequent divorce.
Although pre- and post-nuptial agreements cannot override a court’s discretion to decide how to distribute assets on divorce, a properly prepared agreement, entered into by both parties of their own free will, is likely to be considered favourably by a judge in the event that a couple divorce. A robust agreement should contain full information relating to the assets involved, their value and an understanding of the effect of the agreement in order to withstand scrutiny in a divorce court.
Crucially, the agreements must be freely entered into. Each person must have a full appreciation of the implications of its terms and it must be deemed fair to hold them to their agreement. A “pre-nup” drawn up close to the wedding day smacks of unseemly haste and possibly coercion, and may be disregarded by a judge.
A well drawn-up nuptial agreement, backed by sound legal advice, can form an important part of asset protection for anyone seeking to regulate their own affairs and to protect, business, land and assets for future generations.
For farmers and landowners who plan to re-marry, a pre-nuptial agreement will provide clarity, certainty and protection, preserving family wealth and land for future generations, and helping in the overall tax planning for farming and other business families.
This blog first appeared as Margaret’s monthly column in the Yorkshire Post’s Country Week supplement.
Margaret has significant expertise in farming and landowning cases, you can contact her on 01748 900 888 or visit www.silkfamilylaw.co.uk. You can follow Silk Family Law on Twitter @Silkfamilylaw