To pre nup or not to pre nup?

(18 Posts)
DisneyMillie Fri 10-Jun-16 15:37:10

Following on from someone else's money thread ...

I'm due to get married later this year and I can't decide whether to get a pre-nup... AIBU to consider one?

As background I'm divorced and have a DD from that marriage who lives with us 13 days a fortnight and who DP is amazing with. We also have a baby together.

Money wise we currently own a house together with a declaration of trust which means I get back about £150k more than him if we sold (as I put that in) but I think it doesn't count once we're married without further protection. I also inherited about £150k last year on top of this and have some other savings (he has no savings really) so we're talking reasonable sums.

I don't want to go into this thinking it will end or offend him but I can't help thinking "but what if" and I don't want my DD to lose out if we split. It's so hard to know what's right. He earns about £15k a year more than me so I guess he's contributing more as we put all salaries into a joint account so maybe it's wrong to ring fence savings? (although I also get maintenance which I put in so he's not financially supporting dd).

Opinions please.

squoosh Fri 10-Jun-16 15:38:26

Are pre-nups recognised in the UK?

myownprivateidaho Fri 10-Jun-16 15:39:20

As far as I'm aware pre nuptial agreements are not binding in E&W? Have you actually taken legal advice?

DisneyMillie Fri 10-Jun-16 15:39:23

technically no but realistically apparently yes (as advised by solicitor when I divorced)

DisneyMillie Fri 10-Jun-16 15:39:47

As in they are recognised as legal

DisneyMillie Fri 10-Jun-16 15:40:49

When I divorced my solicitor said to get one of I ever remarried and said courts will uphold them unless unfair

StillDrSethHazlittMD Fri 10-Jun-16 15:42:23

I disagree with your solicitor.

DisneyMillie Fri 10-Jun-16 15:43:30

Oh - are you in the legal industry StillDr - was I misinformed? Maybe there's nothing to consider then and I'll just have to hope for the best!!

StillDrSethHazlittMD Fri 10-Jun-16 15:44:44

Here's one quick Google result from a divorce solicitor that also disagrees for the most part with your solicitor:

www.terry.co.uk/pre-nuptial.html

whois Fri 10-Jun-16 15:45:44

They are being taken into more and more now - unless situations change i.e. you sign one when you are both working, then you give up your job to support your partner and hence earning power reduces. That kind of thing.

I would get a pre-nup in case of disparity in financial assets. Loads of marriages break down, its stupid to think yours never will. And naïve to think your currently loving partner will be fair in divorce.

StillDrSethHazlittMD Fri 10-Jun-16 15:49:00

whois they have occasionally been taken into consideration but they are not legally enforceable or binding in the UK and are absolutely no guarantee of any financial security or otherwise to either partner.

DisneyMillie Fri 10-Jun-16 15:49:20

I get that they are overridden if they impact on the needs of children as stated in the article but since I'm the mum and both children would stay with me that wouldn't be an issue.

Anyway - I'm not after legal advice as I'll seek that if I decide to enter into one - more a would you consider one

StillDrSethHazlittMD Fri 10-Jun-16 15:53:20

If they were legally binding and I was to marry someone who was bringing very little to the partnership whereas I had all the money and owned my own property, possibly.

runningincircles12 Fri 10-Jun-16 16:04:27

I am in the industry (or was until recently). I would recommend that you do get one. StillDr, that website link is for a pretty dodgy one-man band firm from the looks of it. I wouldn't place much weight on what they say. If they were clued up, they would know that even before Radmacher, courts were finding ways of holding parties to pre-nuptial agreements. And as for (from their website) saying 'only time will tell whether Radmacher will be important', hmmmm.....
They are not enforceable as contracts and this is the difference between England/Wales and other jurisdictions where pre-nups are treated as contracts. However, as your solicitor said, they are very likely to be enforced unless it can be shown that it would be unfair to do so. They would only be enforced if the circumstances under which they were entered into were fair (i.e. you each had legal advice, there was full disclosure of assets etc).
Having a pre-nup does not give you a cast-iron guarantee that it will be followed, but it's the closest thing that does. It is especially sensible in the case of second marriages where the parties already have children from previous relationships. I would recommend having a review clause in there after a certain number of years in the event that circumstances change. If you did get divorced, having a pre-nup can also cut costs of negotiation because both parties' legal advisors will know that a properly drawn up pre-nup where there aren't any exceptional circumstances (such as one of you becoming ill or similar) is very likely to be followed by the court.

Basically, any financial orders that a court makes on divorce are governed by an overarching principle of fairness. Therefore, the court can depart from a pre-nup if it is unfair (either in terms of what it provides or because circumstances have changed). that is why it is important to get legal advice when entering into one (and getting your solicitor to sign the document too) and also to make provisions for review or change in circumstances.

runningincircles12 Fri 10-Jun-16 16:08:08

Oh and just saw your latest post. Yes, I would consider one, especially if it was a second marriage and I had a child. Divorce is horrible and if you can have something that makes it easier if it does happen (about 45% chance), then I would say take it. Financial provision laws are difficult to advise on because the judge has significant discretion. This is why cases are often drawn out and protracted because solicitors cannot necessarily say 'you will get X'. Prenups offer at least a hope of more certainty.
Make sure you also make a will!

DisneyMillie Fri 10-Jun-16 16:11:05

Good point running - I'd completely forgotten about wills - I haven't updated mine since pre divorce 😳

runningincircles12 Fri 10-Jun-16 16:19:27

Definitely do that in order to make provision for your DD. Divorce won't have invalidated your existing will, just any gifts/provision you made to your XH. But obviously where you have DC from a previous relationship, you don't want to simply rely on the intestacy rules.
Good luck. I don't think prenups are unromantic- they are sensible. For all other things where we are told there is a significant risk of something happening, we would get insurance. Not for divorce apparently.

AHedgehogCanNeverBeBuggered Fri 10-Jun-16 16:46:17

Look at the Nicolas Granatino case - landmark ruling on prenups. I'd do it to protect your DD.

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