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Tis the season… to talk about pre-nups

With just seven days left until Christmas Day, there’s no denying we are well in the midst of the festive build up. But, for those holding out for a special ‘I Do’ surprise this year, Christmas might just come a bit earlier than expected. 

Predictions made previously by Bridebook [1] show that the weekend before Christmas is when most intending spouses do, in fact, pop the question. So, with this in mind, let’s talk about – shock horror - pre-nuptial agreements (or ‘prenups’). 

Prenups have a strange connotation around them and for some reason, they are seen as a ‘no-no’ - a bit like those taboo dinner topics like politics or religion - or an unromantic spanner thrown in the works that an intending spouse should see as a red flag as to the level of commitment to the marriage or some belief as to its limited longevity. 

In reality, that reaction couldn’t be further from the truth. 

Ask any former spouses who has been through a less than straightforward divorce (and let’s face it, few of them are) whether, given their time again, they would have entered into a prenup and it will likely be a resounding ‘yes’. The cost of divorce is not just a financial burden, complex contested proceedings can take upwards of two years and the emotional toll can last a lifetime for all parties involved - including any children. 

Entering into a prenup is, therefore, far from the ‘unromantic’ concept that it is so frequently seen.  It is about agreeing what you believe to be a fair division of assets and/or income etc., based on your individual and respective or combined circumstances without having to go through the time, cost and emotional fall out of protracted court proceedings to get there. This allows you, your spouse and your children, to move on from marriage breakdown with considerable mitigation as to the inevitable toll that such inevitably takes.   

But, as straightforward as all that sounds, prenups are anything but. 

Nuptial agreements are complex legal documents that require much prior detailed planning and inter-party discussion as early as possible in your engagement and/or other plans to marry. In fact, prior to 2010, before the landmark supreme court decision Radmacher v Granatino [2010] UKSC 42, the courts of England and Wales did not, as a rule, recognise prenups in this jurisdiction in their own right and so such would be open to challenge invariably. 

The Radmacher case saw the Supreme Court reform that position to say;

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The court should give effect to a nuptial
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 the agreement.

Supreme Court

Disclaimer

This information is for educational purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information given. © Shoosmiths LLP 2022.

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