According to the Office of National Statistics, marriage is
on the increase. In 2010, marriages were up by 4%. The introduction of the
Marriage (Same Sex Couples) Act 2013 legalised same-sex marriages and in the
near future civil partners will be able to convert their civil partnership into
a marriage. This is likely to mean that marriage will continue to rise.
Statistics show that the average age for a woman marrying is
29.1 years and for men 30.9 years. Both men and women are likely to have
generated some of their own wealth, whether through their own efforts or they
have received gifts or inheritances prior to the marriage. Having recently
become engaged myself and from speaking to friends in their 20s and 30s and
reading social media sites, it seems that couples are embracing marriage and weddings
but not yet nuptial agreements. Often a nuptial agreement gets overlooked in
the planning stages of the wedding – it can be seen as unromantic. Couples tend
to discuss their future plans such as buying a house, starting a family but
generally do not consider ‘what if we were to divorce?’ To have transparency
before the marriage is arguably better for the couple as it can assist the
financially weaker party to feel secure, gives protection to future inherited
wealth and it provides certainty for both people.
Some might say it is a pessimistic view of the relationship
to enter into a nuptial agreement. Statistics show that the peak years for
divorce are between 3 and 7 year anniversaries. We probably either know someone
who has gone through a divorce or you have experienced it yourself and know how
emotionally draining and expensive court proceedings can be.
What is a nuptial
agreement?
A nuptial agreement is a legal agreement made between two
individuals before or during their marriage. The agreement usually sets out how
the couple wish their assets to be divided between them if they later separate
or divorce and distinguishes between “joint” and “separate” property. Some nuptial
agreements also detail how the couple currently arrange their finances and how
they will arrange their finances during the marriage.
Are nuptial
agreements binding?
Nuptial agreements are not currently binding. However, they
can be given decisive weight by the court if both parties have entered into the
agreement at least 4 weeks before the wedding, each party has obtained
independent legal advice and provided full financial disclosure. The parties to
a nuptial agreement cannot override the court's broad discretion to decide how
to redistribute their assets and income in financial proceedings. This will
depend on the circumstances of the case and other factors that the court must
take into account, with the first consideration being the needs of any children.
Kate is an Associate in the family team. Kate was recently a
guest speaker on BBC Radio Kent about the effect of the Marriage (Same Sex
Couples) Act 2013, which came into force in March 2014.