The rise of pre-nuptial agreements

Chris Burns, partner and head of family law at Lupton Fawcett

We are all familiar with the term ‘Pre-Nup’ which is an abbreviation for a Pre-Nuptial agreement, entered into by those contemplating or about to enter into marriage.

The rise of pre-nups in recent years has been significant. There may be many reasons for this. The rise will undoubtedly be attributable, in part, to what we read and hear about in respect of well known celebrities and indeed have, in many ways, become almost trendy.

However, they often play an important role where there is a family business involved with members of the wider family keen to preserve that business from attack in a subsequent divorce scenario.

The main objective of the pre-nup, however, is usually for one party to protect money or property which he or she brings into a marriage so the same is dealt with separately or ring fenced should the parties

Interestingly, we are seeing a significant rise in new instructions to draft and advise clients on ‘post-nup’ agreements. This may be linked to the rise of the so-called “silver splitter” or couples who decide to separate later in life, often driven by children leaving home.

These enquiries and instructions are often driven by couples wanting to protect an interest in a family business, where there is a genuine concern that the business will come under attack in divorce proceedings, in the younger generation, and those who have built up the family business will want to take steps to protect the business from such attack.

Post-nuptial agreements are for those who are already married. It is a formal contract between spouses setting out how they wish for financial assets to be accounted for in the event that they separate. They are often used when the couple want to identify specific assets or funds that they do not think should be considered as “matrimonial”.

An official study shows that that the number of people over 60 getting divorced has risen by three quarters in just 20 years. This goes against the overall trend of divorces numbers declining which is linked to, according to the Office for National Statistics, dramatic changes in life expectancy have prompted many couples to reconsider whether they really want to grow old together.

The ONS singled out the fact that people are living longer as the most likely cause for the surge in people heading for the divorce courts as they reach retirement age.
The statistics provide some insight into why older couples are entering into post-nuptial agreements.

There are many circumstances where a post-nuptial agreement could be a good idea. The following are examples:

You entered into a pre-nuptial agreement before you were marriage but your financial circumstances have now changed

You are investing money accumulated prior to the marriage into a jointly owned property and want to protect this interest

You receive inheritance that you want to invest into joint assets

You have a share in a business which you want to protect

For further help or advice, please contact Partner and Head of Family Law Chris Burns on 0113 280 2115 or chris.burns@luptonfawcett.law