Nuptial Agreements are made ether before or during a marriage or civil partnership and set out how a couple’s assets and property would be split should they divorce or legally separate. Here Vicki Rawlins, Partner at our Winchester office, explains Nuptial Agreements in more detail and shares the reasons why married couples should consider getting one.
Whilst most people have heard of a Pre-Nuptial Agreement, fewer people have heard of a Post-Nuptial Agreement. Both Agreements are similar in content and share the aim to resolve financial and practical difficulties in the event of a future separation as amicable and straightforward as possible.
Pre-Nuptial Agreements are completed before the wedding and there is clear guidance as to the desired time between the Agreement being finalised and the wedding taking place.
Post-Nuptial Agreements can take place at any time after the wedding and prior to any separation.
Timing is therefore a factor to be considered to determine which Nuptial Agreement would be preferable, but one can be completed either during the engagement or marriage.
A Nuptial Agreement is designed to determine how the couple will deal with and separate their finances in the event of a separation and / or a divorce or dissolution.
Traditionally the Nuptial Agreement will set out how the couple wish to separate assets that one or both have brought with them to the marriage. This could for example relate to property, investments, or business interests. Consideration can however also be given to future assets that may be received or obtained during the marriage, either individually or as a couple. Examples of these could relate to an inherited gift or a property purchased together as a couple.
Whatever terms the couple agree will form the starting point for division of assets if they do go on to separate. Whilst nothing can prevent one spouse from trying to override the terms of the Agreement, the terms of the Nuptial Agreement must then be considered, and the focus will be on that spouse to persuade the court that the terms should be changed.
In general terms provided certain guidance has been followed by the couple when the Agreement is reached, and the terms agreed are not fundamentally unfair to one spouse, the court will seek to follow the Nuptial Agreement wherever possible. This therefore gives the couple the best available protection in the event of a separation.
As a Nuptial Agreement will be completed when the couple are still in a relationship, it makes it much easier to focus on the practical and financial issues to be considered. Trying to resolve such matters after a separation is made much more difficult due to the emotions that both will be experiencing alongside likely major lifestyle changes such as a change of home. This is even more so if the separation has not been a mutual decision made by both spouses.
Choosing to consider and agree these issues in advance, taking the couples’ specific aims and priorities into account, greatly increases the prospects of reaching a fair and amicable agreement.
Terms are agreed between the couple and can be as wide or as narrow as they see fit. The Nuptial Agreement could simply deal with just one asset or could set out how the couple wish to divide all assets and income should they later separate. It is an adaptable document which will be tailored to the couples’ needs.
Whilst it is possible to include in a Nuptial Agreement how they wish to deal with possible future events, no-one can see into the future. Something may happen which the couple had not envisaged, or they may feel differently about an event when it does then happen.
Nuptial Agreements are flexible as they can be updated as and when the need arises, provided the couple can agree such amendments. It is common for Nuptial Agreements to include provision for review and possible updates at specific intervals, for example every 3-5 years, or upon certain events happening such as having a child. Ultimately whether such terms are included will be the couples’ decision and will form part of the negotiations.
Nuptial Agreements will ordinarily save the couple time, money, and stress.
If a couple separate without having had a Nuptial Agreement, negotiations will then be necessary. Various factors can make this a very difficult process. In those cases, the only option may be to begin contested court proceedings.
In those circumstances the matter is unlikely to be resolved for at least 1-2 years, during which time the couple’s lives will often be in limbo. The costs of such negotiations, and especially court proceedings, will generally be much more expensive than the costs of a Nuptial Agreement. Finally, the emotional impact and stress that this will have on the couple is far greater than the alternative.
Nuptial Agreements are growing in the UK and can be viewed as an option for consideration akin to financial planning advice. Specific legal advice should be sought to consider the couples’ individual needs and priorities before entering into a Nuptial Agreement.
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