What’s mine is yours? Top 10 tips for your prenuptial agreement

14th April 2016

The excitement over planning a wedding can take over the whole family, but prudent brides, grooms and their families should not overlook the financial implications of their future nuptials.

As Susan Davies, partner and head of family law at Ansons Solicitors in Lichfield, points out, “Busy farming families and entrepreneurs usually protect themselves from a range of risks in their businesses.  However, when it comes to marriage, good financial sense is often forgotten.”

Making a prenuptial agreement before you get married can take away some of the financial worry about what will happen to your assets and property if your marriage does not work out.

Susan Davies, head of family law at Ansons Solicitors in Staffordshire gives you her top 10 tips for what to include in your prenuptial agreement:

1. Property ownership
As a married couple any property or land you own, even if it is in one person’s sole name, can be redistributed by the court in the financial settlement of a divorce. By making a prenuptial agreement you can agree whether you will each be entitled to keep your own property and how any jointly owned property, such as your home or a holiday property, will be treated on divorce or separation.

2. Business
Building a business can be a lifetime’s work and a culmination of your dreams and ambitions. If you have spent many years before your marriage growing your business, or you have acquired a business through family succession, you may naturally be concerned about losing a share of it through divorce.

Making a prenuptial agreement will give you the opportunity to discuss whether to ring fence your business. If you are going to give your spouse an interest in the business you can set out how shares will be divided. Our corporate law team can give you advice on safeguarding your business interests.

Your spouse may also be your business partner, company secretary or an employee. If so, their may be employment law issues to consider and you will need to consider  whether you will continue to work together if the marriage ends or plan an exit strategy.

3. Pensions
Your pension pot can reflect your future security and your retirement plans. If you are marrying later in life, or for a second time, you may not be willing to risk losing a substantial portion of your pension through pension sharing in a divorce settlement.

You can include express provisions in your prenuptial agreement about how pensions are to be shared and whether your partner will be entitled to any lump sum payable from your pension, such as a death in service benefit, if you die before the pension starts paying out.

4. Family heirlooms 
Inherited wealth and treasured family heirlooms are often a very sensitive issue on divorce, especially if they are likely to fall into the hands of your spouse. You can take steps to prevent this by including express provisions in your prenuptial agreement.

By agreement you can decide whether you will each keep ownership of assets passed on by your own side of the family or whether they will be shared. This division is easier in the case of tangible assets such as paintings or furniture but more thought should be given to how inherited wealth is to be treated. For example, what should happen if one of you inherits money and that is put towards buying a house for you both to live in.

5. Personal possessions
You may have each acquired numerous personal possessions before you got married that you may want to keep hold of if you split up. This could include cars, furniture, art, antiques, musical instruments, cd’s, books and digital assets and even your pets. You can specify how these are to be owned from the outset in the event of a divorce.

Added to this, there may be expensive wedding presents and jointly owned purchases during the course of the marriage. With a little thought from the outset you can save a lot of acrimony, and lawyers’ fees, by agreeing how these assets should be divided if the marriage does not last.

6. Savings and debts
Your prenuptial agreement should include your respective entitlement to cash savings, policies and investments. You may want to distinguish between what happens to savings owned before the marriage and those built up during the course of the marriage, depending on contributions.

While you will usually be liable for debts in your sole name, responsibility for jointly accrued debts such as secured lending, credit cards and hire-purchase agreements may need clarification.  This can especially be the case where only one person is working. If, as part of your marriage you have agreed to pay off your partner’s pre-marital debts such as student loans or rent arrears then this should be recorded, expressly stating whether the money is to be paid back if the marriage comes to an end.

You can even specify your arrangements for paying the household bills, whether they are to be shared equally or one of you is to pay them all.

7. Spousal maintenance
Where there is an inequality in income between you, it may be appropriate to decide whether any maintenance will be paid to your spouse if the marriage breaks down. It may be your intention that one person stays at home during the marriage, maybe to raise a family, while the other goes out to work. Or maintenance may be just a way to redress the balance between you for unpaid contributions towards building up a business.

Your prenuptial agreement cannot be used to decide maintenance for children.

8. Death
You may want to decide and record in your prenuptial agreement your intentions for what you would like to happen if one of you dies. Will the other person be entitled to continue to live in the house? What should happen to your business interests, assets and personal possessions?

Any previous will becomes invalid once you marry and you will need to make a new one after your wedding day. A prenuptial agreement can be a way of providing your spouse with some assurance in the interim. Although the prenuptial agreement cannot interfere with your right to leave your assets to whoever you choose in your will, it may hold some sway with a court if a disgruntled family member is challenging a will.

9. Children from previous relationships
If either of you already has a child from a previous relationship, your prenuptial agreement will need to include them and make reasonable financial provisions for them too in the event of a divorce.

The prenuptial agreement should not be used to make arrangements for children of the marriage, even if they were conceived or born before the marriage. You will instead have to negotiate this with the help of your solicitor on separation, or apply to court, depending on your circumstances at the time.

10. Review
You will need to decide what events, if any, will affect the validity of your prenuptial agreement and if it should be revised. This may be the birth of a child, illness, redundancy or simply a lapse in time.

You might also want to stipulate what happens if one of you does not stick to the terms of the agreement, such as failing to pay half of the bills, and even include  appropriate penalties or sanctions.

Negotiate your prenuptial agreement together

Engaging the skills of a trained collaborative lawyer can be a particularly effective way of negotiating the terms of your prenuptial agreement. Your chosen collaborative lawyer will quickly help you to address the key issues and focus on achieving an agreed outcome. You should both have access to independent legal advice due to ensure that you fully understand the terms of the agreement before signing.

Prenuptial agreements are being increasingly recognised by the court as a good reflection of a couple’s intentions towards each other if they separate. You must both take independent legal advice, give full disclosure of your financial assets and neither of you must be under any duress before signing the agreement. The agreement must also be ‘fair’.

For further advice, please contact Susan Davies in the family law team, on 01543 267 190 or Ansons Solicitors has offices in Cannock and Lichfield, Staffordshire.