Is marriage back in fashion? Do I need a nuptial agreement?

16 September, 2014
by: Cripps Pemberton Greenish

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.