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Pre-marital Agreements used to be thought of as a transatlantic import that we in England and Wales could well do without. However, with the rising divorce rate, Pre-marital Agreements are becoming more and more frequently used by couples who wish to set down guidelines to cover the hopefully unlikely event of a marriage not working out.
Courts in this country are taking more and more notice of Pre-marital Agreements. This is particularly the case where: -
- Each party to the Pre-marital Agreement has obtained independent legal advice before signing it.
- There are no children of the relationship.
In such circumstances, Courts are more likely to take account of the wishes of the parties to the marriage, as set out in the Pre-marital Agreement. After all, if two adults freely enter into an Agreement, each with the benefit of independent legal advice upon the terms of the Agreement, why should not the Court give effect to the parties' wishes?
Before we go on holiday, we take out insurance in case the holiday goes wrong and we end up disappointed. By buying holiday insurance, we do not jinx the holiday. We are just sensibly planning ahead for every eventuality. That is exactly what a Pre-marital Agreement seeks to do. It will not jinx the marriage. It may end up saving many headaches and a vast amount in legal fees, not to mention the stress and anxiety of the uncertainty that sometimes follows when couples divorce, and for example there have been unequal contributions into the marital pot.
A Pre-marital Agreement is a sensible means of forward financial planning, which will become more and more common in the future. It is a simple and straightforward process, which does not take very long from start to finish.
However, it will only have a chance of succeeding, if it is enter into before the marriage takes place. As yet there is no "morning after" Pre-marital Agreement.
If you would like further information about Pre-marital Agreements, and how we might help you, please contact me directly.
If you own a property, and you consider that a Pre-marital Agreement is for you, you should also consider two further steps to protect your interests namely:
Co-Ownership Deeds
A Co-Ownership Deed will set out in a legally binding document how you and your co-owner hold your property, and in what shares. It will also determine how and when your property can be sold and in what timescale.
If you have a Co-Ownership Deed, it is likely that you will own your property as a tenant in common. In that case, you need a Will in order to specify without any ambiguity at all, how you would like your estate to be distributed in the event of your death.
Three steps to giving you as much financial security and peace of mind as you could possibly have in circumstances in which a relationship/marriage breaks down are:
- A Pre-Marital Agreement.
- A Co-Ownership Deed.
- A Will.
For information on drawing up a Co-Ownership Deed please contact the head of our domestic conveyancing department, Steven Quy.
Wills
It is also worth remembering that marriage automatically revokes a will. If when you were single you made a will leaving your estate for example to your parents, when you marry that will comes to an end. It will no longer govern what happens to your estate, in the event of your death, after your marriage.
If you die without a will, you are intestate, and there are laws which govern to whom your estate passes in those circumstances. The distribution / disposal of your estate under these laws may differ substantially from your views or wishes. In particular, if you have a pre-marital agreement whereby the assets of you and your intended spouse are kept separate, then it will be assumed that it is not your intention that those assets pass automatically to your spouse when you die. This may happen if you die without making a new will on your remarriage.
Making an effective will can save your estate many thousands of pounds and is:
Making a will is not:
- Time consuming
- Complicated
- Going to invite disaster to befall you
It is important that as part of the process of making a pre-marital agreement, you consider how you wish your estate to pass in the event of your death, after marriage. To view information on making a will, please click here.
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