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Of Romance and Marriage - should a Pre-Nup be factored into your wedding plans?

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The last few years have been consumed by thoughts and discussions relating to the Covid pandemic and the various restrictions imposed as a result, but fast-forward to March 2022 an...

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Date: 08/03/2022

Authors:

Teresa cullen colour 2014
Ronnie mortimer colour 2019

Ronnie Mortimer

Associate

The last few years have been consumed by thoughts and discussions relating to the Covid pandemic and the various restrictions imposed as a result, but fast-forward to March 2022 and spring is in the air and with that the joy of planning a wedding or a civil partnership is at the forefront of many minds.

If you are planning a wedding or civil partnership, there will undoubtedly be a number of things on your ‘to do list’ before the big day, but spare some thought as to the legal effect of getting married and, perhaps in the light of that, consider whether a Pre-Nuptial Agreement may help and don’t forget the importance of making a Will.

The most recent past

It certainly feels like a long time ago since there was a sense of normality. Weddings were events that you would be invited to year on year, but suddenly the invites dried up with the onset of the global pandemic and life stood still for many.

At the height of the pandemic, weddings and civil partnerships were not permitted to take place unless there were ‘exceptional circumstances’; usually sad ones! That position gradually improved as we started to escape Covid’s grip, and the number of people being permitted to attend weddings and civil partnerships slowly increased from 6 to 30 and then, eventually, restriction-free weddings were allowed to take place in the summer last year.

Over 220,000 weddings in the UK were postponed in 2020, and whilst the Omicrom variant was set to derail plans again at the beginning of this year, it has been predicted that there will be approximately 350,000 weddings in 2022, a steep rise from the average 275,000 weddings per year in pre-pandemic times. It has been estimated that the wedding industry lost a total of £5.3 billion in 2020 and planners, caterers and event venues in London alone lost £900 million.

On 21 February 2022, the UK government set out its “Living with Covid” Plan to remove the remaining legal restrictions while protecting people most vulnerable to Covid and maintaining resilience. In England, people with Covid are now not legally required to self-isolate if you test positive for Covid, routine contact tracing has ended, and face coverings are no longer mandatory on tubes, trains or buses, although they are still strongly encouraged. For the rest of the UK, the restrictions are slowly easing. The position now taken by the UK government will clearly pave the way for weddings and civil partnership to go ahead without much difficulty (other than the diplomacy attached to the preparation of the seating plan and trying to keep all the relatives in order), however, precautions should still be taken to minimise the risk of catching Covid.

The UK government has issued some new ‘Guidance for couples planning to get married or form a civil partnership in England, and venues hosting there event’, which can be found here and separate guidance has been issued for Wales, Scotland and Northern Ireland.

Pre-Nuptial Agreements

It is increasingly common for people to consider entering into a Pre-Nuptial Agreement prior to getting married. In many other jurisdictions they are commonplace and, indeed, some jurisdictions require a couple to select a marital regime regulating how their assets will be dealt with before allowing them to marry.

In England and Wales, Pre-Nuptial Agreements are not recognised by statute, but by case law following the Supreme Court case in 2010 of Radmacher, which held that:

“the Court should give effect to a prenuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

As with any contract, it is important that the formalities are followed in order to make the Agreement binding. This means that the Agreement must not only be fair in how it divides a Party’s assets in the event of a Divorce, but must also be fairly negotiated and not the subject of somebody being forced into the Agreement whether overtly, or by implication, for example, by leaving it to the week before the wedding to raise the topic. That in itself would raise concerns.

These days with more second marriages, blended families, children and stepchildren, and the trend for people to marry later (the number of brides and grooms aged 65 and over went up by 46% in a decade from 7,468 in 2004 to 10,937 in 2014), the need for careful thought to be given to what should happen in the event of a Divorce cannot be overestimated when it is ‘coupled’ with the overall Divorce rate in England & Wales running at 33.3%.

A Pre-Nuptial Agreement allows the couple to ring-fence certain assets, particularly those that may have been acquired before the couple even met, including, for example, inherited property which needs to remain in the family. An Interest in a family Trust can also be protected in this way and we are seeing more and more Trustees requiring beneficiaries to consider a Pre-Nuptial Agreement before getting married in order to safeguard the Trust assets.

Of course, the provision made in the Agreement must be ‘fair’. It would not be possible to leave somebody penniless without any assets of their own with no share of the new family wealth.

Certain other factors come into play when dealing with a Pre-Nuptial Agreement, such as whether the couple are likely to have children of their own and the way in which those children are to be provided for.

A Pre-Nuptial Agreement must be made with the benefit of financial disclosure. It is important that anybody who is considering giving up rights by entering into a Pre-Nuptial Agreement is aware of the nature and value of the entitlement they are being asked to surrender.

Drafting and, even more so, negotiating a Pre-Nuptial Agreement on behalf of a Party requires considerable sensitivity. We always recommend that couples consider having the discussion about a Pre-Nuptial Agreement and creating and signing it long before the wedding ceremony itself.

There are bound to be some areas of tension, and with skilful advisors the couple can be helped to progress to a final Agreement many weeks prior to the wedding ceremony so that as the ceremony approaches attention can be spent on the important issues of seating plans, floral decorations and, of course, the choice of Champagne.

Wills

At the same time as making the Pre-Nuptial Agreement, it is recommended that the Parties enter into new Wills. Many people are not aware that the act of getting married renders any previous Will ineffective. Without a new Will, and in the event of one party dying, the widow or widower will have to fall back on the Intestacy Rules, which can often have adverse and unintended consequences, particularly where minor children are involved. Moreover, it is very common for a Pre-Nuptial Agreement to contain a requirement for both Parties that they will make suitable provision for the other in their Wills along the lines of the provision in the Pre-Nuptial Agreement itself.

What are the next steps?

If you are planning on getting married, consider whether a Pre-Nuptial Agreement is the right thing for you. Specialist legal advice should be sought from our team of Family Lawyers at Fladgate who are very familiar with drafting and advising on such documents.

Above all else, plan ahead, seek legal advice as early as possible – and enjoy the big day!

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