So what’s changed?
Are prenups legal in England & Wales?
Will they be?
Should you sign one?
The prenup. It may sound like an abhorrent idea to you, or just common sense.
Where there is a substantial difference in assets, or perhaps if it is not a first marriage and there are children from the previous marriages, then why shouldn’t you be able to protect what you want to pass on to them?
What if you were Katie Price?
Well at the moment you can’t, whether you are Katie Price or not.
That’s not to say that you can’t have a prenup - you can write it, agree it and both sign it, but it will still be unenforceable in law.
The prenup is not entirely irrelevant however and the law has evolved slightly so that the courts will at least look at the document. The Supreme Court has said that unless it was unfair, it should be given decisive weight (Radmacher v Granatino). If you have a prenup or are thinking of having one make SURE you get expert advice!
The trouble is this – put your lawyerly hats on for a minute – what is ‘unfair’ and what does ‘decisive weight’ mean? Clearly time for change you may think?
Well the Law Commission did. On 27th February 2014, the Commission (the body that recommends changes in the law) said that certain qualifying prenuptial agreements should be allowed in law. It also says that there are certain financial needs, needs of each other and of children, which you should not be allowed to contract out of. Basic fairness you might think. But after that, after the needs have been met, why shouldn’t you – in theory – be able to decide before hand who gets what after divorce?
They have laid out some recommendations for prenuputial agreements in a draft bill.
The agreements apply to civil partnerships and marriages
They can be made before or after marriage, save for the period 28 days before you get married
They will apply if you die
They must be made by deed
There must be relevant disclosure (you can’t hide what’s yours from the agreement!)
You must get legal advice
If you vary it, you must do all of the above again!
You can read the full report here.
The long and short of it is this: if you are thinking about one now (or on the receiving end of someone else who wants one!) get some advice.
If the recommendation becomes law – a while off yet – then you will have to get advice, but whilst the murky waters of the current prenup situation exist, be sure to do all you can to protect yourself.
If its your second marriage or you have assets that you need to protect then it may well be a question of love, true love AND pre-nup!
If you have any questions about this article, or how it might apply to you, click here to get in touch.
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