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12: Presents and prenup

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12: Presents and prenup
Leave your thoughts John Darnton

By John Darnton

New Year’s Eve is a traditional time for engagements. It is a time for looking forward and making plans.

Amidst all the excitement of finding a venue and planning the honeymoon it is important not to overlook the benefits of having a pre-nuptial agreement (a ‘prenupt’).

It remains the case that prenupts are not, strictly speaking, enforceable in England as simple contracts. Nonetheless they can, in the right case, be an important consideration should the marriage break down and that fact that the couple have entered into an agreement may limit the scope for disagreement, should the relationship fail. At the very least a discussion about one may help to flush out any misunderstandings at the outset.

When dealing with prenupts the approach adopted in “Don’t Tell The Bride” is not to be encouraged. It is important that both parties are fully engaged in the discussions leading up to the signing of the agreement and that one is not closeted away for 3 weeks whilst the other one scurries around in the background providing the other with a total surprise on the big day.

The best prenupts are those that are crafted to take account of the particular circumstances of the couple concerned and, so far as this is possible, designed to meet their desires for the future. Whilst many agreements look very similar, they need to be prepared with thought and care. It is not a case of buying an ‘off the peg’ product. Different questions arise if there is inherited wealth, one party has built up a successful business prior to the marriage or children are planned.

It is important that prenupts are genuine agreements that each party has entered into willingly, with their eyes open and having had the benefit of good quality legal advice. This process takes time. There will invariably need to be time to accumulate and understand the couples’ finances. The agreement will need to be prepared and the parties will need time to study its terms and understand its implications. It is rarely helpful for somebody to feel rushed, or worse, pressurised into entering into a prenupt. Concerns raised in good time can usually be allayed; if they emerge in the days leading up to the big day that can be much more of a problem. There are more important, and enjoyable, tasks to be done on the eve of the marriage than negotiating the terms of a formal document that will potentially have significant consequences for both parties.

Although there is no magic to this, we would suggest that it would normally be helpful for the process to start at least 3, and preferably 6, months prior to the date of the wedding.

If you have any questions arising out of this blog, please contact one of the partners in our family team, Sian Jones, Lisa Bolgar-Smith or John Darnton.

23 December 2015

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