For many couples, especially those of modest means without the likelihood of amassing major wealth, a prenuptial agreement is unlikely to be really necessary. However, if one party to a marriage has significantly more assets than the other, or is likely to inherit substantial wealth, then it may be prudent to consult a divorce solicitor to talk about what could happen to the money in the event of relationship breakdown.
When two people get divorced, a court will take into consideration all wealth and property that the couple possesses to calculate an appropriate financial settlement.
Without a marital property agreement (the overarching name for pre-nuptial and post-nuptial agreements), all wealth, including inheritances and pre-wedding assets, will form the family property and a court may decide that it is appropriate to divide the total wealth on a 50/50 basis.
A well-drafted prenuptial agreement can help protect any family heirlooms, houses, businesses, and potential inheritances, but both parties will need to have fully disclosed their assets, sought independent legal advice, and signed the agreement in plenty of time before the wedding.
Contrary to what some people believe, a marital property agreement must be fair and cannot seek to disadvantage the other party to the marriage.
So, a spouse who seeks to prevent their former partner from gaining any financial restitution after divorce, by means of a punitive pre-nup, will almost certainly have the document thrown out of court.
However, if both parties have agreed in a pre-nup that a family cottage or valuable painting should stay in the possession of one spouse, the judge may be inclined to ring-fence the item and not include it as part of the financial settlement claim.
In England and Wales, pre-nups are not legally binding and although a court will look upon a correctly drafted document as guidance in a divorce financial settlement claim, judges are not bound to adhere to the contents.
Plus, any spouse who is found to have withheld information about their wealth and assets during negotiations for a prenuptial agreement will also see the document decreed null and void by a court. (Withholding financial information during a divorce settlement claim could also see the relevant spouse held in contempt of court and facing prosecution.)
While some people will always see prenuptial agreements as unromantic and an unnecessary hassle, here at George Ide we see them as just another form of financial planning and, as a marriage is often based on sharing and juggling the financial burden, a marital property agreement can be seen as forward-thinking and completely sensible – just like investing in a pension or taking out insurance.
If you are unsure whether drawing up a marital property agreement would be in your best interests, it is worth speaking to the family law team at George Ide.
Our solicitors can advise you – whether you live in Chichester, Bognor Regis, Midhurst, Hayling Island, Southampton, or further afield – and we can tell you quickly and expertly whether a prenuptial agreement would be suitable for your circumstances.
If your partner is insisting that you must sign a marital property agreement, our lawyers can check the document to ensure it does not seek to disadvantage you, and we can represent you in any further negotiations to create a fair agreement which protects you in the event of a divorce.
For more information and to speak to a divorce solicitor today, please call our family law team in either our Chichester or Bognor offices.
For a considerate and sensitive family law service that is always on your side, choose George Ide.