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Pre-nuptial agreements: Are they necessary?

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With the news of Ben Affleck and Jennifer Garner’s divorce hitting the headlines this week, the gossip columns are full of tales of woe from people going through a split that failed to sign a pre-nuptial agreement before their wedding.

But what exactly are pre-nuptial agreements (or pre-nups for short), and do you need one?

What is a pre-nuptial agreement?

A pre-nup is a legal document a couple enters into before they get married. It outlines the couple’s wishes if they separate and divorce. Essentially, it’s about how they want to divide the money and other assets.

It can be a difficult subject to broach: you’ve planned your proposal to the nth degree, popped the question and are now starting to plan your wedding and life together. You’re planning your fairytale outfit and making tough decisions about colours, theme and favours. Is now the time to consider what might happen if the marriage turns sour?

The practical and realistic answer is, regrettably, yes. Once you are married, you become, in the eyes of the law, one entity and the old saying, ‘What’s yours is mine’ becomes true. Planning how to divide your money and belongings upon divorce, before you even marry, can save plenty of pain and heartache in future. If you are thinking about a pre-nup, then it is best to obtain legal advice several months before your wedding date to allow enough time to negotiate and draft the agreement.

Are they binding?

It’s true that pre-nups are not binding in the Courts of England and Wales, however they’re taken into consideration by Judges during divorce proceedings if a financial application is issued. More weight is given to them now as Judges see them as an indicator of the couple’s intention when they were deciding to get married. As long as the agreement is valid and entered into properly, the Court will take it into account when making to make their decision on finances.

What can they cover?

Pre-nups can deal with any money or assets belonging to you and/or your partner, including the following items:

•    Property
•    Pensions
•    Big ticket items such as cars, boats, paintings, jewellery etc
•    Shares and investments
•    Income
•    Financial provision for Children

Can we instruct the same Solicitors?

The short answer is, no. You need to both separately obtain independent legal advice on any agreement that is drafted. Financial disclosure needs to take place before an agreement can be finalised so that you both know what you are getting into.

For more information, visit our webpage on pre-nuptial agreements, or contact one of our expert Family lawyers for guidance.

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