Wedding postponed due to COVID-19? BLM's family team ask if it's time to revisit your pre-nup?
I was getting married in the morning...ding dong the bells were gonna to chime…
For many who were planning their wedding in the coming months, their excitement is now replaced by sadness and uncertainty with the Government ban on social interaction aka “lockdown” meaning that weddings are no longer permitted activities. Many will have lost out financially and there’s the emotional fall out to deal with too. But what about the pre-nuptial (pre-nup) agreement?
If you have already entered into one, with your wedding having meant to be imminent, do not panic. If you haven’t already entered one and your wedding is postponed, now is the time to think about using this time wisely. I refer to our previous blog, which deals with the law around pre-nuptial agreements and specifically whether they are legally binding.
Pre-nuptial agreements should be negotiated and finalised in good time before a wedding. They are drafted in anticipation of the marriage, which generally takes place within 12 months of the agreement being finalised. However, if your wedding has been delayed or cancelled because of the current government guidelines and is likely to take place later than 12 months from the date of the agreement, you may need to consider revisiting this in advance of the big day.
Similarly, if an agreement has been reached on the basis of an asset pool that no longer exists, you may wish to re-negotiate accordingly.
In the meantime, as life goes on, you may consider that living together, if you are not already doing so, or moving forward with having children should still go ahead. In that case you may wish to consider whether a cohabitation agreement or a parenting agreement should be considered in the meantime. It is also of course a very important time to consider your will too.
If you are going through or considering a divorce at this time and are already party to a pre-nuptial agreement, you ought to seek legal advice with regards to whether the agreement ought to be upheld in light of the current COVID-19 pandemic. For example, there may be reference to a company in which the shares have plummeted or property that has decreased in value or a maintenance order than is no longer affordable. Remember, they are not automatically binding and you could apply to the court for financial provision, contrary to that which is provided for in the agreement or you could consider negotiation, mediation or arbitration to resolve any issues arising as a result.
BLM’s Top 10 Tips for water tight pre-nup:
- Ensure that both parties have a good lawyer.
- Start the process in good time.
- Only enter into a pre-nup if you are both doing so freely.
- Make sure you have both disclosed your respective asset and income position carefully.
- Give the document some context and some human context. For example, if your intention is to protect inheritance for children of a first marriage, say so.
- Don’t forget that you might need legal advice in another jurisdiction if there are foreign assets at play;
- Make sure it’s fair.
- Consider carefully what changes you may go through as a couple and provide for them.
- Include a review clause and use it.
- Supercharge the process by having a round table meeting (virtually for now) so everyone is on the same page on what needs to be achieved before the drafting process starts.
Speak to BLM's experienced family law team about drafting your pre-nuptial agreement. We're here to help.
Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.