Guest Article: Pre-nups – a marital letter of intent?

Whilst it may not be the most romantic item on a wedding list, a pre-nuptial agreement is increasingly a consideration for couples, particularly those who are marrying second time around. So, they are not just for the rich and famous!

Planning for the worst-case scenario may seem unduly pessimistic but a well-drafted agreement could save you thousands of pounds in legal costs and give you and your business some certainty for the future.

Many businesses have been in families for generations and protecting that legacy is an important consideration. A pre-nuptial (or post-nuptial, if entered into after marriage) agreement can protect a business if the relationship fails.

Pre- and post-nuptial agreements are still not legally binding in this country but they can be highly persuasive to a divorce Court. The key ingredients of a well-constructed agreement are:-

• with pre-nuptial agreements, these must be signed at least 28 days before the wedding;
• material disclosure of each other’s financial circumstances;
• independent legal advice about the terms and implications of signing the agreement;
• no pressure on either person to sign the agreement.

These agreements can be particularly useful for business owners who may be reviewing their exit from the business and who want to consider contingencies should their marriage run into difficulties in the future. You should also review and update your Will, Power of Attorney and any Shareholders’ Agreements, to ensure your intentions are clear and consistent.

In February 2014, the Law Commission recommended that the law should be changed to allow couples to enter into “Qualifying Nuptial Agreements” (QNA) either before or after marriage. This still needs to be considered by Government so it will be a while before any progress is made.

The Family team at BPE work with business owners to help them plan for the future, drawing on their significant expertise in advising commercial clients on divorce and separation.

For more information, please contact Helen Cankett, head of the Family team, on 01242 248256 or email helen.cankett@bpe.co.uk.

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These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.