On 14 March 2017 the office of National Statistics released the latest marriage data regarding couples marrying in England and Wales. This shows that the rate of marriages in the over 35’s has increased in relation to both women and men year on year. The greatest percentage increase in rates occurred among men and women who are aged 65 or over.
Whist the statistics do not go into detail as to whether these are first, second, or subsequent marriages, it may be safe to assume that those who are marrying later in life may have previously been married to a different partner. Couples who marry in later life also have had more time (either as a single person or as a formerly married person), to accumulate capital, income and pension provision, and may well have children from previous relationships who may still be dependent or may even be independent. As such, brides and grooms in these marriages later on in life, often have much more complicated financial situations than those who marry early. In some circumstances (say for example a previous short childless marriage) the engaged couple may feel happy in bringing their assets into the marriage unprotected. However, in the case of fiancés who may have children from previous relationships, other responsibilities, financial obligations, or even accumulated financial wealth, they may wish to make arrangements prior to their marriage to ensure that should the marriage break down, there will be provision made for those potential dependants and/or that pre-acquired wealth to be considered separately by any future Court.
The most straightforward way to try and address these issues is by way of a Pre-Nuptial Agreement. Pre Nups are not recognised as having the force of law in the UK at present, unlike in some other civil law jurisdictions. However, if a Pre Nup is entered into properly, it can be viewed as being extremely important by any future Court should the marriage break down.
The key issues in drafting an effective Pre Nup are to ensure that both parties have provided full and frank disclosure of all of their financial and other relevant circumstances, that both parties have either taken legal advice or have had the opportunity to do so and are happy to proceed without that advice, and that there is sufficient time before the wedding for the parties not to feel pressured into entering into an agreement which they may not in fact be happy with.
If a Pre-Nuptial agreement is drafted thoroughly, and includes clauses that will take effect and account for most of the potential events that could occur during the marriage (such as the birth of a child or an inheritance), then the Courts are more likely to see any agreement as being a key factor in determining the outcome of any financial hearing.
If the parties later separate, then one party or both parties can ask the Court to rely on the Pre-Nuptial Agreement in determining the outcome of the financial matters between them. Whilst in England and Wales Pre-Nuptial Agreements can be overridden by the Court’s discretion, if the factors set out above are met, the Court is less likely to consider that it needs to exercise its discretion and therefore is more likely to give effect to the parties’ initial wishes before marrying. The real significant area where the Court may decide to intervene is if the nature of the agreement is unfair to one party and leaves them with insufficient funds or income to meet their needs. In these cases, a Court can decide to depart from the terms of a Pre-Nuptial Agreement to make sure that both parties’ needs are at least met. The Pre-Nuptial Agreement may however may then come back into play when looking at other assets after the needs of the parties have been addressed.
England and Wales is in a position of limbo at the moment regarding Pre-Nuptial Agreements, the case law says that they should have some effect and that the better drafted they are and the more comprehensive they are, the more effect they are likely to have, but they do not have the force of law as yet. Therefore, if you are looking to enter into a second marriage, it is important to take all the practical steps that you can to protect your financial position and to make provision for any children from previous relationships and to make sure the criteria set out above are met so that if your Pre-Nuptial Agreement is challenged in any later Court, there is a much greater chance of the court upholding the terms.