Gemma Gillespie looks at nuptial agreements and discusses whether they are unromantic or just good sense?

By Gemma Gillespie, Partner

Nuptial Agreements are contracts which a couple enters into before (pre) or after (post) marriage, setting out what the couple agrees will happen to their capital, pensions and income if they divorce.

A Nuptial Agreement, like a Will, needs to be reviewed periodically to check it continues to achieve what you both want. Unlike a Will, it is not legally binding but maybe given decisive weight in a divorce, if it meets the needs of the children as well as the needs of the husband and wife.

They are a sensible option if you are anxious to protect assets you built up or obtained before the relationship started or monies you inherited from your family before or during the marriage.

If you have lived together for several years prior to marriage, as soon as you marry, even if the house is in your sole name, it will become a ‘matrimonial asset’ and upon the divorce will either be divided equally or in such a way as to meet both party’s needs. This can come as a surprise, particularly if you put 100% of the deposit down and paid all the mortgage. A Nuptial Agreement in these circumstances can be used to protect, as far as possible, the capital that has been invested in a property.  

In my experience, Nuptial Agreements can support marriages as they enable couples to have candid conversations about finances, which can sometimes be the route of problems further down the line. They can also ringfence assets the couple want to protect but only if the children and the couple’s needs are met.

The kinds of cases where it is sensible to consider the making of such agreements include:

• It is your second marriage;
• You have or are likely to receive significant inheritances;
• You invested in the family home in significantly different proportions;
• You have a family business.
  

If this is your first marriage and you are entering it with little or no wealth then they are unlikely to be appropriate. Historically the English and Welsh courts felt they undermined the sanctity marriage but in my opinion the reverse is the case - they make good sense for the right couple.

Please do not hesitate to contact Gemma Gillespie on email: gjg@cooperburnett.com or tel: 01892 515022. www.cooperburnett.com

This blog is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.

Originally published in The Times of Tunbridge Wells: https://www.timeslocalnews.co.uk