Marital Agreements

As the cost of a wedding reaches an average of £30,000, many couples now take out insurance to cover any loss if there is a problem with the venue, the dress, the photographs or other arrangements that could affect their dream day.  Insurance is taken out not because they believe the marriage won’t take place and not because they don’t want the marriage to take place, but because something might go wrong and as a consequence the wedding can’t or doesn’t take place.

Mention the words ‘Pre Nuptial Agreement’ and there is usually a sharp intake of breath followed by an emotional reaction against the idea of seeking to limit and protect against the potential consequences of separation and divorce.  Would there be a different reaction if these Agreements were called ‘Marital Agreements’ and they were part of everyone’s wedding planning arrangements?

In reality the cost of the wedding (despite seeming huge at the time) can be a fraction of the cost and expense that a couple might incur if the marriage does not work out as they had hoped and dreamed.  A Marital Agreement is, in reality, just another form of insurance that will help to sort things out if the worst should ever happen.   No one enters a marriage expecting, wishing or intending to divorce just as no one insures their home expecting it to be burgled or that it will burn down. 

On marriage, spouses acquire the ability to pursue financial claims against the other in relation to capital/property, income and pensions.  The Matrimonial Causes Act 1973 sets out those claims and provides a Judge with guidance in the form of factors to be taken into account when determining claims and dividing assets, income and pensions.  A Judge is tasked to achieve fairness however people can often have very different views on what is fair. 

When you care about someone, when you want to please them, when you want to make the other person happy, your view of what is fair may be substantially different to that view when your spouse has left you, told you that they do not care about you and you are frightened about what the future holds. 

If a marital agreement is drawn up before the wedding setting out what you both consider and agree to be fair if you decide to separate, then you can take control of the decisions which will impact on the two of you for the rest of your lives.  Even if one party subsequently challenges what was previously agreed, knowing what both had considered fair before the marriage in the ‘Marital Agreement’ will be extremely helpful to a Judge. 

Often the first time people think about making a Will is when they marry - not because they are anticipating death but because they want to put arrangements in place to provide security for their spouse in the event that they die unexpectedly.  In the same way that Wills are reviewed on a regular basis, Marital Agreements should also be reconsidered over the course of a marriage to take account of any changes in circumstance. 

In a changing world where people rarely marry the girl or boy next door that they and their family have known forever, why take the risk?  Ultimately it is all about planning for your future whatever lies ahead; there is value and worth in putting arrangements in place to achieve peace of mind.

Posted on: 14/09/2018

This article is for general guidance only. It provides useful information in a concise form. Action should not be taken without obtaining specific legal advice.

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