Why pre-nups are important if you marry later in life

Prenuptial agreements, or pre-nups, have always had their critics, as people have voiced their opinion that they are a cold and cynical process and take the romance out of what should be the greatest day in the lives of partners in an impending marriage.

Yet pre-nups are becoming more and more popular, and with different generations, as people recognise the importance of getting everything on the table and out in the open with clear visibility.

This highlights the fact that pre-nups are a sensible and practical means of arranging your affairs pre-marriage, and that this becomes even more important as you get older.

Younger people, or ‘millennials’ if you like, are typically getting married later in life and are often the children of divorce themselves, and hence have experienced the upset and disruption that a breakdown in marriage has caused. Safeguarding against the complications of that is therefore a natural reaction and entirely understandable. Divorce rates among older people are also still quite high, and if you are walking down the aisle for the second or third time, there can be an added layer of complexity to your estate, your financial affairs and what you need to protect, which makes a pre-nup a very wise option and suits the flexibility in which the agreement can be drawn-up.

First and foremost, the older you are when you get married, the more likely it is that you have accumulated assets that you wish to protect. These can be financial, they can be property or they can be a business. You are also more likely to have children from a previous marriage, and maybe even grandchildren, and you will want to ensure that they are properly protected in terms of inheritance. It is even possible that you are retired or approaching retirement, and hence it is even more critical that you protect your finances (including things like pensions and medical insurance) with an impending situation that you have no regular income.

What a pre-nuptial agreement needs to contain

Given the importance of pre-nup agreements for older couples, it is naturally just as important that you understand how they work and how they need to be structured. It is now some twelve years since the Supreme Court made an important decision in relation to pre-nuptial agreements. This came via a case called Radmacher and Granatino, which concerned a very wealthy couple, but in terms of setting a legal precedent, one of the principles that it set out is applicable to all marriages.

Pre-nuptial agreements in the UK are still not by law automatically enforceable, but after the court judgement in this case it is broadly correct to say that a divorce court will always seek to follow a pre-nup, unless it finds that would lead to an unfair result to do so. Sarah Laughey, Director and Head of Private Family law at Ison Harrsion, commented “Typical situations where a pre-nup can be helpful include where the husband and wife, or both of them, already own property or assets, perhaps from a previous marriage or relationship. A pre-nuptial agreement can serve to “ring-fence” such assets from claim should the marriage break down, and there is a divorce”.

A pre-nup can also be a good idea for any marrying couple who want to set out their own arrangements, rather than risk having such arrangements imposed on them by a court. It might not seem all that romantic, but sensible agreement and planning can help to avoid costly and unpleasant disputes should the worst happen, and a marriage break down. It is, however, far more likely that a divorce court will not in any way go against the terms of a pre-nuptial agreement if it can meet certain requirements. A professionally drawn agreement should always therefore seek to show:-

a – That both the spouses have had separate and independent legal advice;

b – That they have disclosed to each other full details of their financial position at the time of the agreement;

c – That the agreement has been completed sufficiently in advance of the date of the wedding; and

d – That it doesn’t allow either spouse to avoid potential financial responsibility for any children of the marriage.

Expert family law advice

In a divorce settlement, one spouse can’t actually prevent the other spouse asking the court to make a decision on financial settlement, but if there is a soundly drafted pre-nuptial agreement in place you can ensure that they are unlikely to be successful should they try. Over and above that, in recent years it has become easier, and thus more commonplace, to make an application to the court to stop such an attempt at an early stage.

All these factors are issues you would need to consider as part of a pre-nup agreement, and of course these become more relevant the older you are, because of the additional assets you will have accumulated and because of the more vulnerable position you hold, being closer to retirement. This is why the flexibility of a pre-nuptial agreement is a very important consideration for anyone deciding to marry later in life.

Ison Harrison expertise

If you need any family law advice on the benefits of pre-nups and what the process involves, or if you want to make a start on arranging a pre-nuptial agreement, contact our highly experienced team of family lawyers today. Our law society accredited Family lawyers that are based throughout our 17 branches, have a diverse range of specialisms to help you with any family law issue including divorce, separation and financial issues, cohabitation, pre and post nuptial agreements, child arrangement orders, care proceedings and domestic violence.

This week Ison Harrison was announced as Law Firm of the Year: Medium at the Yorkshire Legal Awards.