The practical process of obtaining a nuptial agreement
The process of entering into a nuptial agreement may not be as difficult as you think. We have pulled together a five step guide.
Step one – Discuss the possibility of a nuptial agreement with your partner
Some people choose to see a solicitor to find out a bit more information about nuptial agreements and the process of obtaining one before they raise the subject with their partner. Others prefer to float the idea with their other half first, to gauge their reaction. For some, this can be a daunting thing to do. We have found that our clients find it helpful to reference some of the benefits (link) of a nuptial agreement, including:
- They offer a degree of certainty so both parties can feel secure and know where they stand
- They reduce the likelihood of acrimonious litigation in the event of divorce (this can be particularly important to people who have gone through a divorce before)
- It is important to them or their family that family wealth is ring-fenced for future generations.
Once the idea of a nuptial agreement has been floated, it is a good idea to discuss a broad outline as to what sort of things it will cover in order to ensure that you are both on the same page and there are no surprises down the line.
Step two – Each party engages a solicitor and agrees the headline terms
It is important that both parties have independent legal advice. Therefore each party should engage their own solicitor. At an initial meeting, both parties' solicitors will explain the law on nuptial agreements, the process of the negotiations and how the agreement can be structured so that it contains the terms that best suit your needs.
Typically, the agreement is drafted so that certain assets are excluded from the division that happens on divorce, commonly defined as "separate property". For example, one of you may want to exclude pre-existing wealth that you bring into the marriage. You may also want to exclude the sharing of broader categories of wealth that arise during the marriage, such as gifts and inheritance.
Marital assets, i.e. those owned or acquired jointly, will be treated differently and be open to sharing. These kinds of arrangements will usually be flexible. For example, if one person has defined needs on divorce that can only be met if some of the separate property is also required to meet needs, then those needs can be defined and this can occur (but only insofar as it is necessary).
Another method sometimes used is the 'tariff approach' which is to make specific financial provision using a system where one person receives, on divorce, a lump sum and/or maintenance linked to the length of the marriage. Such provision would probably be capped if the marriage exceeded a certain duration.
Whatever the approach, an agreement would also normally contain provisions as to how the property you own jointly is to be dealt with on divorce and how any marital finances are to operate. It is vital that you take specialist legal advice to ensure that a bespoke document is drawn up, which meets your objectives. In the event of divorce, it must satisfy the court that its terms are objectively fair.
Step three – Disclose assets and liabilities
It is important that both parties set out an accurate snapshot of their financial positions so that both go into the process of negotiating the agreement with their eyes open. Both will need to disclose accurately in writing their individual assets and liabilities. Some may feel apprehensive about this at first, particularly if there is family money involved, but it is a good opportunity to have a frank discussion about each other's finances. If either party fails fully to disclose their financial position, it could seriously undermine the agreement.
Step four – Draft and negotiate the agreement
Normally the person who initiates the idea of a nuptial agreement will ask their solicitors to prepare the first draft. Once that person is happy with it, it would then be sent to their fiancé/ée or spouse to discuss with their solicitor before proposing any amendments they feel may be necessary. It is important that this process starts, ideally, at least three to four months before the wedding, in order that there is plenty of time for negotiations to take place without either party feeling under pressure.
We try and make sure our agreements are as flexible as possible, to take account of any significant life changes. In some cases couples will include clauses which require the nuptial agreement to be reviewed if a certain life event takes place. This could be after having children, moving abroad or simply after a specified period of time. Other parties may choose to review the document in the event that their financial circumstances change markedly from the point at which they first signed the agreement.
Step five – Sign the agreement and put it somewhere safe
Once the terms of the nuptial agreement have been agreed, the document must be signed. The parties can sign the agreement remotely, or they may choose to come in to one of the solicitors' offices in order to sign it together. The only requirement is that the signing of the agreement is witnessed.
It is then common for one of the parties' solicitors to hold on to the original on their file and to provide certified copies to the other parties. Unless you have made provisions to review the nuptial agreement or your circumstances have changed significantly, there should be no requirement to revisit the document again. All you need to do is keep the document somewhere safe and feel reassured that you have greater clarity over your financial future in the (hopefully unlikely) event of divorce.