Pre-nuptial agreements and how they can help you
We often find it hard to discuss what might happen if a marriage does not work out and therefore don’t consider the plans we can put in place at the start of a marriage which will enable a “good” divorce. Marriage will hopefully last time a lifetime but what insurances can be put in place if it does not?
At Rollits our family team stress the importance of pre-nuptial agreements for couples to enter into before marriage to regulate what may happen to their finances if they subsequently divorce.
Pre nuptial agreements help couples acknowledge their circumstances going into a marriage and help both be open and honest about their financial position and what they consider to be fair. Whilst a prenuptial agreement is not about pre-empting your marriage will fail, it can help provide a level of certainty by clearly defining the financial arrangements if you separate and thus simplifying the process, avoiding stress and making it less costly.
Our legal system allows for parties to argue they should have more, or less, than the other, with the starting point being that all assets must be considered and then for a discussion as to why they do not believe a certain asset should be included. This will often be assets they were pre-acquired outside of the marriage.
These agreements can benefit a wide range of people but particularly those who are working in their family business or for agricultural property which may have been handed down through the generations. Very often assets may be gifted to younger generations or they receive income/assets from a family trust fund and as a result will want to protect this.
Families can be complex and considering the individual circumstances of your family at this life changing moment will provide an element of comfort and clarity.
If you are already married you can still protect assets acquired in similar circumstances by entering into a Post Nuptial Agreement. For example, one person may inherit or for planning reasons the family may want to gift something to them - there may be worries that this would be absorbed as a matrimonial asset upon separation and this may not feel fair depending on the stage of the marriage.
It is important to have the discussion about the need for a Pre-Nuptial Agreement sooner rather than later. Producing an agreement the night before the wedding and saying that we are not getting married unless you sign it will not stand up in Court - so make the decision as soon as you make the decision to marry – a pre-nuptial Agreement ideally needs to be signed at least one month prior to the wedding.
Be prepared to provide full and frank disclosure of your personal and financial circumstances, including documentation. To not do so is likely to jeopardise any agreement.
Both people should take separate, independent legal advice - allow time for this.