Getting engaged is an exciting time and for happy couples the furthest thing from their mind is the prospect of the relationship breaking down. Unfortunately, data from the ONS recorded 107,599 divorces in 2019 an increase of 18.4% on 2018, showing the importance of thinking about the practicalities of life and making sure both you and your partner are protected upon any subsequent separation.
If you are considering prenuptial agreements, our Family Law Executive, Lauren Foote has prepared some frequently asked questions to provide some initial clarity:
What is a Prenuptial Agreement?
A Prenuptial Agreement which sets out a couple’s clear intention to create a legal relationship and how they wish their assets to be divided. Prenuptial Agreements usually include matrimonial and non-matrimonial property (joint property or separate property). This property can include, but is not limited to, the matrimonial home or other property, bank accounts and income.
Why do I need a Prenuptial Agreement?
A Prenuptial Agreement provides couples with clarification certainty in the event of a future breakdown of the marriage.
Getting married creates financial consequences. When couples divorce the Court has the power to make financial Orders under the Matrimonial Causes Act 1973. The starting point upon separation begins with each party claiming an equal share of the matrimonial finances, regardless of contributions (in most cases). It is then for each party to plead their case as to why there should be a departure from equality.
Without a Prenuptial Agreement, the parties to a marriage are unable to confirm what their intentions were prior to the marriage. In this case the Court will exercise their powers and make financial Orders based upon all circumstances of the marriage and without any significant consideration to the party’s intentions before they married.
Are Prenuptial Agreements Legally Binding?
Prenuptial Agreements are not legally binding in England and Wales. A spouse who has entered into a Prenuptial Agreement is still entitled to make an application for a Financial Remedy Order and the document itself does not prevent the Court from deciding how the matrimonial finances should be divided upon divorce.
The document is however persuasive in a Court of Law and a Judge must consider the Prenuptial Agreement during the course of proceedings. By entering into a Prenuptial Agreement the parties show a clear intention to create a legal relationship and form a valid contract. This document cannot however override the Court’s jurisdiction when making Orders under the Matrimonial Causes Act.
When considering a Prenuptial Agreement the Court must apply a test upon the document before upholding the agreement. Two questions are asked:
- Was the agreement freely entered into by both parties?
- Did the parties have a full appreciation of the agreement’s implications?
In light of the above, it is imperative that any couples looking to enter into a Prenuptial Agreement take appropriate independent legal advice. If the parties do not take legal advice upon the Prenuptial Agreement the Court may deem the document invalid and may not hold each party to the terms of the agreement.
How much can a Prenuptial Agreement Cost?
At Quality Solicitors Davisons we estimate the costs associated with entering into a Prenuptial Agreement between £800 - £1,500 + VAT . The costs in advising, and preparing, a Prenuptial Agreement can differ depending on the complexity of the agreement itself.
We are able to offer a fixed fee appointment to all potential new clients, during which we can provide advice and a more specific estimate as to costs and upon a detailed discussion as to all matters. This in turn will also provide a better understanding as to the options which are available to you.
How Can Davison’s Help?
It is important to seek legal advice before agreeing to a Prenuptial Agreement. Our established family lawyers will be able to draft the agreement and provide you with certainty that you have taken steps to protect your assets, should the relationship ever break down.