Do you or your family have a family business? Do you have assets acquired before marriage? Will you be giving up your career/ job to look after the children for a period of time? Are you likely to receive an inheritance? Is your financial position very different to your partner’s? Is your income earning capacity now, or do you expect it to be different to your partner’s? Do you and your partner have assets acquired together before marriage? Do you have or expect to have pets? Do you have heirlooms? Are there any international considerations? Where do you plan to live; In England and Wales or abroad?
Food for thought, but by no means an exhaustive list of considerations. Each prenuptial agreement (also known as a prenup) should be tailor made for you and your partner. It can also set out what will happen to the pets in the event of separation of divorce.
In 2017, The New York Times
published an article titled 'When Couples Divorce, Who Gets to keep the Dog? (Or Cat.)"
It states that 'Alaska became the first state to enact pet-custody legislation which allows a court to consider the animal’s well-being....'.
Cost for advice, prenup and considerations
Robust advice is needed after a detailed analysis of the facts. It is not a 'one size fits all' exercise.
Prices for a prenup vary between law firms. The decision as to which lawyer or firm to instruct should not be based solely on price. Of course, couples may have a budget in mind which can be factored into the overall costs for a wedding as part of the financial planning and budget. However, paying a higher hourly charging rate or price for a prenup will not guarantee that it will be the 'best' one for you offering the most protection, or that the cheapest one is a 'bargain' or will not be 'good enough'.
You need to feel comfortable with your legal team; be able to work with them and understand the advice given to you. The way your instructions are conveyed to your partner’s lawyer is as important, to avoid confrontations at what should be a very happy, exciting time in a couple's life.
The choice will be yours as to whether you will take the advice given by the lawyers. What you do not want, is to turn a happy relationship into a tainted one for financial reasons because of the way your matter has been handled.
A prenup is a document that both parties should understand, feel comfortable with and enter into of their own free will without any external pressures to sign the document. Both parties should have had sufficient time to obtain legal advice and to reflect on the advice received before signing the prenup.
Prenuptial agreements are not automatically enforced in England and Wales. However, since the case of Radmacher v Granatino
2010 UKSC 42 more weight is given to prenuptial agreements by the courts. Couples should enter into this agreement with the intention of being bound by it.
Provided the prenuptial agreement is entered into by the parties of their own free will without any undue pressure upon either of them, with both parties having had sufficient time to seek independent legal advice should they wish to do so with all the information including financial disclosed by the parties prior to signing, a court would consider upholding the terms of the prenuptial agreement unless it would be unfair to do so having regard to all the circumstances of the case.
In the case of KA v MA
(Prenuptial Agreement: Needs)  EWHC 499 (Fam) the wife had signed the prenuptial agreement notwithstanding the legal advice that she received. In this case the Judge went on to consider whether the prenuptial agreement met the wife's needs and 'In this context what does needs mean?'
Self help? Is this a false economy?
I have been asked on many occasions 'can I just print a prenup off the internet and we both sign it? or, 'can we not just write out ourselves what we require and sign it?
Whilst I cannot, without seeing the document, comment on the quality of the proposed prenup someone is considering downloading from the internet to sign, there is more to a prenup than just signing on a dotted line a document with the heading 'Prenuptial Agreement'. It is not a two-minute exercise. A badly drawn up prenup is not worth the paper it is written on, in my opinion.
It is important to seek independent legal advice before you marry or sign a prenuptial agreement for a number of reasons, including whether or not it would be in your best interest to sign a prenuptial agreement. Careful considerations need to be made including: In the event of a marriage turning sour would a party be in a better position to seek to rely in England and Wales on the provisions of the Matrimonial Causes Act 1973 and or The Children Act? Would it be best not to sign the prenuptial agreement that has been presented to a party or do amendments need to be made to avoid potential hardship on divorce?
Section 25 factors (Section 25, Matrimonial Causes Act 1973)
Under the Matrimonial Causes Act 1973, on applying for a financial remedy on divorce (previously referred to as Ancillary Relief Proceedings), the courts will look at what is commonly referred to as the section 25 factors as these are set out in section 25 Matrimonial Causes Act 1973. These include:
- the income, earning capacity, property and other financial resources which each of the parties to the marriage has, or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would, in the opinion of the court, be reasonable to expect a party to take steps to acquire;
- the financial needs, obligations and responsibilities each party to the marriage has or is likely to have in the foreseeable future;
- the standard of living enjoyed by the family before the breakdown of the marriage;
- the duration of marriage;
- the age of each party to the marriage;
- any physical or mental disability of either of the parties to the marriage;
- the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family;
- the conduct of each of the parties, if that conduct is such that it would, in the opinion of the court, be inequitable to disregard it.
Each case is considered by the court on its own set of facts and the Judges do have a wide discretion when making financial orders on divorce in England and Wales.
In a prenup, both parties can agree terms that they would be prepared to settle on if the marriage were to turn sour, in order to avoid the costs, delay and stress of a contested court hearing when emotions are running high. See it as a form of financial planning during happy times and review it to ensure it meets with the needs of the parties.
The law applicable in this article is that in England and Wales. While every effort has been made to ensure the accuracy of the information in this article, it does not constitute legal advice and cannot be relied upon as such. The writer does not accept any responsibility for liabilities arising as a result of reliance upon the information given.