Maeve O’Higgins considers the desire to ringfence family gifts or inheritances as ‘non-matrimonial assets’ in a prenup or postnup and explains how to improve the effectiveness of such clauses in preventing financial claims against these assets in the event of divorce.
With the increasing numbers of parents having to provide financial help to their children to get a foothold on the property ladder, it has been suggested (link) many are insisting their adult children enter into prenuptial agreements to protect the investment from claims by spouses in the event of divorce.
It is true there is a growing awareness of the benefits of prenuptial agreements. In our Family Department, we are receiving increasing numbers of enquiries seeking advice about such agreements. Some of these are prompted by parents of the individuals contemplating marriage, and some come directly from the parents themselves, seeking legal advice about how a prenuptial agreement can protect family gifts against financial claims by the other spouse.
In general terms a prenup or postnup is a useful way of ringfencing ‘non-matrimonial’ assets, including funds gifted to one spouse by members of their family, or inheritances received by one or other spouse before or during the marriage. Equally these agreements can be helpful to couples who have been married before and who wish to preserve wealth acquired prior to the new marriage for the benefit of the children of their former marriage(s).
Key to whether such clauses in the prenup or postnup will be upheld by the court in the unhappy event of the couple’s divorce depends on whether the assets acquired during the marriage are sufficient to meet the economically weaker souse’s financial needs for housing and financial support, as well as the financial needs of any children. In addition, as with any such agreement, it is important to observe accepted good practice.
While the Law Commission has recommended that prenuptial agreements should be made legally enforceable subject to certain safeguards, these recommendations have not been taken up and translated into legislation. As a consequence, prenuptial agreements remain legally unenforceable in England and Wales so it is not possible to make a binding agreement which cannot be interfered with by the court.
Good practice includes:
- both parties having independent legal advice about the agreement
- both parties providing financial disclosure
- allowing sufficient time for the discussion and negotiations leading up to the agreement and signing up to it not less than 28 days before the wedding
- both parties must enter into the agreement freely
- above all the agreement must be fair.
In order to try to ensure that the agreement remains fair with the passage of time and changes in family circumstances, some couples include provision for regular reviews of the agreement - say every 5 or 10 years -and/or on specific ‘trigger’ events - such as the birth of children, inability of either spouse to work for medical reasons or redundancy.
Family Law Partner, Moon Beever
This blog is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.