Why a pre-nuptial agreement should be part of your wedding planning
Couples often overlook pre-nuptial agreements, but with one in five marriages (including second marriages) ending in divorce by their 10th anniversary and the courts becoming more inclined to uphold them, it’s worth considering getting one drafted.
It is appreciated that within the Asian community, divorce is still a taboo subject. Asian parents were ‘in it for the long run’, even when times were tough. Therefore, any discussions within the relationship surrounding divorce can be difficult. Additionally, conversations with friends or family can be isolating, making you feel unheard and unsupported.
You (and your parents) have worked hard to accumulate wealth. It is important to take steps to protect it in the event of a relationship breakdown and avoid future disputes regarding how wealth may be distributed in the event of divorce. Without having these types of discussions with your partner, dividing assets if you divorce can result in unnecessary cost, delay, and stress in an already difficult situation. Whilst pre-nuptial agreements are not necessarily binding in the UK, the courts are becoming more inclined to uphold them in the absence of any invalidating factors. If you are engaged, it is worth adding a pre-nuptial agreement to your wedding planning, particularly if you and your fiancé(e) want to protect resources acquired prior to your marriage or want some control over how your assets will be divided in the event of a divorce. While the Asian community may view this as unromantic, stingy or calculating, knowing that both sides are on the same page about future finances creates a healthy foundation for the coming marriage and is well worth the time and monetary expense associated with a pre-nuptial agreement.
When should you start the process?
The agreement should be signed at least 28 days before the wedding, so we recommend consulting solicitors, at least four to five months beforehand, to avoid any potential arguments that one side was pressured into signing the agreement.
If you are already married or are concerned that there is insufficient time before the wedding, then a post-nuptial agreement can be prepared after the wedding.
Can you instruct the same solicitor?
No, each of you should receive independent legal advice from separate solicitors on the terms and implications of the agreement and what rights you will be relinquishing if you sign it. Independent legal advice will strengthen the enforceability of the agreement and show the court that both sides entered into the agreement without any undue pressure.
On a more practical note, this allows you to have conversations with your solicitors that may be awkward if your partner were present. You can, therefore, be completely frank with your solicitors about your concerns and ask difficult questions to gain a full understanding of what you are agreeing to in the pre-nuptial agreement.
What information do you need to disclose?
You need to disclose information (and supporting documents) relating to all of your resources to your partner. Assets such as future inheritance, sentimental chattel and even what you paid for the wedding can be disclosed and, therefore, protected in the event of divorce.
If there is a suggestion that your partner did not know the extent of your wealth, the agreement could be prevented from being upheld by the courts.
Will the nuptial agreement be upheld?
If the agreement provides one person with less than they need, it is likely to be deemed unfair, and the court will make whatever provision it sees as reasonable and fair in the circumstances. It is important that the agreement meets both parties’ needs (along with those of any children) when drafted.
Is it worth the cost?
It may seem like an additional and unnecessary cost when you are funding your wedding, but it is worth considering the potential future savings of protecting your pre-acquired wealth, gifts, or inheritance and avoiding costly litigation further down the line.
For any family law-related query, VWV’s Family Law team offers a free 30-minute, no-obligation call. Please contact Bindu Malkan on 01923 919 349 or bmalkan@vwv.co.uk.
Blog written by Bindu Malkan, an expert who is part of The Trusted Network.
