Pre-nup part 3 of 4: is it right for me?

As I mentioned in Part 2, pre-nups or prenuptial agreements are becoming increasingly popular. As the average age for a first marriage continues to climb, and as more people are enrolled into pension schemes from a younger age, it’s becoming more likely that young couples already have assets that they wish to protect, such as should the relationship not work out, even if those assets don’t yet include property.

Couples getting remarried are more likely to have a property, perhaps also having a pension and other savings, and often children whose interests they’d like to protect. For them, a pre-nuptial agreement can be a vital resource. For older couples unlikely to have further children, a pre-nuptial agreement is not complicated by the needs of those born into a relationship (where a judge might over-rule the terms of the pre-nup if those terms are to the detriment of the couple’s children together).

It is understandable that if you already have children from a previous relationship you might want to use a pre-nup to preserve for them your pre-existing assets. However, Baroness Hale offers a warning in Radmacher v Granatino [2010] UKSC 42, that

 ‘an older couple…may find that one has to become a carer for the other and will be left homeless and in reduced circumstances if the grown-up children take priority even though they…have no pressing need of their inheritance.’

You therefore need to consider very carefully how you would divide your assets between your new spouse and any previous children; and at what stage any inheritance can be claimed – in case of either party needing care and maintenance after your death.

In order for the agreement to be sufficiently watertight you and your new partner have to be transparent and open about  your respective financial positions prior to your marriage. Because of this, a pre-nup provides an excellent starting point for any financial remedy sought in the event that the marriage is not successful. But it also provides a written understanding of how currently accrued assets are to be divided should you separate or if one of you dies.

These are complex and emotional issues, and we would recommend that you seek the advice of a solicitor to discuss the feasibility and terms of any agreement you wish to make. You will be able to talk through your particular circumstances and any difficulties for a greater peace of mind as you start your new life.