Pre-Nuptial Agreements are now being taken into account following a recent court decision in July. Whilst there was some speculation that pre-nups could be binding, it is probably better to say such agreements will be taken into account when considering how to divide the assets and decisive weight must now be given to their terms. InsideDivorce.com asks leading family law expert Suzanne Kingston of law firm Dawsons for her top-tips:

In the past, in England pre-nuptial agreements have been viewed very much as a celebratory “must-have”. However that is changing. There are a number of people who should seriously consider entering into a Prenup:-

1. Pre-Existing Wealth. It may be that you have already made your money through work (remember the heady days of the big bonuses?!) or you have inherited funds from family already or have assets placed in trust.
   
   
2. Future inheritance – if you are likely to come into money in the future and you know that you will want to try and protect that, it’s sensible to see if you can ring-fence those funds in a Prenup. In fact, it may be that your family will put pressure on you to do that since they want to ensure that the monies continue to go “go down the family line” and are not diluted by newcomers/interlopers into the family!
   
   
3. International mobility – as more and more people travel for work and pleasure, it may be that different jurisdictions will need to be considered for your Prenup. Each jurisdiction has a different view of Prenups - in the States in America for example and in mainland Europe, Prenups are generally strictly enforceable and binding. It may be therefore necessary to have two Agreements – one in this country and one in another. This is an extremely complex area of law and needs expert legal advice.
   
   
4. “Once bitten twice shy” – you have been through a “shocking” divorce and feel that you couldn’t possibly do it again. You appreciate that after the judgement in the case of Radmacher –v- Granatino, there’s still no certainty, but you would prefer to have a Prenup than not.
   
   
5. Civil Partnerships. You’ve been living in a gay relationship for some time and recognise that you can now could formalise the terms of your relationship by entering a Civil Partnership. You have both made historic contributions to the relationship and therefore believe that a Pre-Civil Partnership Agreement is in your best interests.

So what are the positives?

1. You can try and protect pre-acquired/inherited assets.
   
   
2. You can try and obtain clarity and certainty in this jurisdiction (England and Wales) which is notoriously uncertain and full of discretion!

What about the negatives?

1.  It’s difficult to broach the subject – how do you start talking about the end of your relationship when it hasn’t even begun! Can you really put it in terms of “it’s just like an insurance policy – I am sure there’s no risk attached but it would be a good idea to have one!”
   
   
2. It’s already stressful enough prior to getting married, is it therefore sensible to add another layer of hassle and stress! In order to obviate that, it might be sensible to think about doing your Prenup Collaboratively – this is the new buzzword from America – essentially in this process both lawyers and both clients sit down together in a series of roundtable meetings and discuss the terms of the document with a view to trying to put the interests of both parties and the family first, rather than individual self interest. Although this sounds fantastical, it is fair to say that in my experience Prenups prepared in this way have been less acrimonious and generally more pleasant - it is definitely worth a try particularly since all of the rigors attached to how the agreements are drafted remain exactly the same.

Conclusion

So all in all, there are a number of reasons why it may be necessary to consider having a Prenup. Perhaps the first “port of call” is to get to a good solicitor who is used to drafting these agreements and who will be able to deal with this issue quickly and constructively on your behalf. Also, think about drafting your Prenup early. It must be signed at least 21 days before the wedding but there is no harm in signing it before that so how about putting it on the wedding planning list right at the outset!

-Suzanne Kingston
Dawsons