Pre-nuptial agreements represent a prudent and essential strategy for individuals aiming to safeguard family wealth. Despite their practical benefits, why do they continue to be regarded as “unromantic” in the UK? Moreover, why are they exclusively associated with the ‘rich and famous’?

With nearly half of marriages ending in divorce, it’s entirely sensible to seek early counsel. Currently, pre-nuptial agreements aren’t inherently binding in England and Wales. However, both the Court and the Law Commission have set out specific measures necessary for the Court to recognise its validity. It should be entered into freely, with a full appreciation of its terms where the agreement is deemed to be fair.

While pre-nuptial agreements are capable of safeguarding assets, it’s essential to recognise that they cannot be intrinsically “unfair.” Instead, they must align with the needs of both parties and any dependent children. Rather than merely serving as a tool to ring-fence assets, a pre-nup should be regarded as a comprehensive financial blueprint—a guide for managing a couple’s finances during their marriage and, if necessary, after divorce.

While it may be a difficult conversation to begin, especially where you are far wealthier than your spouse-to-be, it is a conversation that may well save you both heartache and costs should a divorce occur.

Chris Longbottom, expert divorce lawyer and partner at national law firm Clarke Willmott LLP, considers pre-nuptial agreements to be in the same category as insurance policies. He said: “Every couple insure their home against fire but do not want nor expect their home to burn down. The same can be said for a pre-nup; you should not enter into one with the expectation that divorce is inevitable but rather that you want to set out what would happen if divorce occurred.

“In some cases, I have found that entering into a pre-nup has actually strengthened a relationship. A couple who has engaged properly in the process of entering into a pre-nup with full financial disclosure and independent legal advice, are able to plan for their married life together with financial certainty and clarity.”

If you’ve been previously married, have a disparity of assets, have children from a prior relationship, intend to pass down multi-generational assets (like farm land), or are contributing differently to the initial marital assets, seeking advice on safeguarding your position is advisable.

Advice regarding pre-nuptial agreements must go hand-in-hand with sound financial planning. Imagine, for instance, a couple who have been preserving wealth or assets for several years for the benefit of their daughter. They wouldn’t want their efforts to unravel following a divorce where their son-in-law seeks to claim against the wealth provided by them and therefore, they should be advised about the use of a pre-nuptial agreement to preserve family wealth and any family assets. Providing financial education to future generations will contribute significantly to the increased adoption of pre-nuptial agreements.

It may be that the couple look to link the need to enter into a pre-nuptial agreement with benefiting under a trust for instance, as a ‘family practice’. This may make the conversation between the daughter and husband-to-be far less awkward as there is a clear reason behind the pre-nup (to benefit from the family wealth together) rather than intimating that it is personal against him. It also ensures that the conversation is between daughter and her partner rather than appearing to be enforced by her parents. The young couple could go on to enjoy the family wealth for some time and the pre-nup would simply record what would happen to the family wealth and assets if they should latterly divorce. This should be a regular conversation in cases such as multi-generational farm owners.

Protecting businesses from divorce

Imagine also the scenario where friends enter into a new business venture where one is married and one is not for instance. It may be sensible for the business to seek a clause in the Shareholders Agreement to require them to have a pre/ post-nuptial agreement to protect the business from claims on divorce. Many do not consider what would happen to their business if their business partner ends up divorcing, let alone themselves. It may be that these business partners find that the legitimate business need to enter into a marital agreement may create an opportunity for that difficult conversation with their partner to deal with all their assets which they may be entirely grateful for.

The benefit of a binding pre-nup for a young entrepreneur looking to make their fortune cannot be stated enough. The inability for a couple to sensibly set out how assets are to be treated both in and outside the marriage can have a real impact upon the business and the individual looking to get back on their feet following a divorce.

It may also be that you simply wish to ensure that the assets you retained following an earlier divorce are protected; perhaps for the benefit of children of that first marriage. Having an early discussion as to the sensible planning for this may well put many people at ease with the thought of re-marriage.

Chris continued: “Like other wealth planning exercises and Will preparing, marital agreements, such as pre-nups, helps individuals prepare and plan for their marriage and beyond. It also gives individuals both clarity and certainty which may well lead to openness and a stronger bond between individuals where a marriage is hoped to last but clearly sets out a fair outcome for both individuals should the marriage end.”

If you have a query or would like to discuss your own circumstances, please request a consultation with Chris Longbottom or a member of the Clarke Willmott Family Law team.

Clarke Willmott is a national law firm with offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton and is this year celebrating its 135th birthday.

For more information visit Specialist Family Law Solicitors - UK & Abroad - Clarke Willmott