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Who needs a prenuptial agreement?

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T’is the season for celebrity weddings

It has today been reported that Take That’s Howard Donald has married Katie Halil, that Cameron Diaz has married Benji Madden and that Stephen Fry is set to marry his 27 year old boyfriend following a whirlwind romance but what does marriage mean for these celebrities, and for you, in terms of the change to your relationship from a legal point of view? Who needs a prenuptial agreement?

The legal position when you are living together

As cohabitees the legal position in terms of how assets are divided on separation is arguably straight forward but is often considered to be unfair. The starting point is that any assets which the parties have should be divided upon separation as they are legally held i.e. if one party has money or property in their own name then the starting point is that they should retain this. Similarly if one party has brought a property into a relationship but changes the ownership during the relationship so that it is held jointly then the starting point will be that the net proceeds of that property should be shared equally.

There are some cases where that would not necessarily be the position, for example where it can be evidenced that the parties’ intention was different, but those are the exception rather than the rule  If you do have any queries about rights of cohabitees then you should contact us and ask to speak to one of our specialist solicitors.   You can also read about the proposed reform of cohabitation rights in our recent blog www.family-law.co.uk/blog/family-law-reform-rights-cohabitees/ .

The legal position when you marry

When you marry the legal position as to what should (and can) happen financially on separation changes. Simply by virtue of your marriage the family court gains the ability to make a variety of financial orders on any divorce. Those can include the following:

1.    An order that one party pay to the other a lump sum of money;

2.    An order that a property be sold or transferred from one party to another;

3.   An order that one party pay to the other a sum of money by way of maintenance and (usually) on a monthly basis.

4.    An order that pensions be shared; and

5.    An order that other assets be transferred, for example, business shares or investments.

It will be relevant when deciding whether or not to make an order and what order to make for the family courts to look at a variety of factors which in summary are as follows:

1.    The welfare of any minor children.

2.    Income, earning capacity, assets and financial resources;

3.    Financial needs, obligations and responsibilities;

4.    Standard of living;

5.    Age of each party and the length of the marriage;

6.    Health of each party;

7.    Contributions (financial and non-financial);

8.    Conduct; and

9.    Loss of certain rights.

The factors themselves are set out in law in England and Wales. The relevant statue is the Matrimonial Causes Act 1973 and the relevant section is section 25. A link to that can be found here: www.legislation.gov.uk/ukpga/1973/18/section/25

What can you do?

It is sometimes the case that regardless of how successful their relationship has been to date and how much they may care for their partner parties are concerned about the potential for the court to become involved if at some point in the future they separated and that there may end up being a division of the assets which they feel is unfair. This can often be the case where parties are entering into a second marriage (and perhaps have another family to provide for) or there is wealth which has come or is due to come from an external source, perhaps a family business or some large inheritance. In those cases parties would best be advised to take proper independent legal advice prior to entering into any marriage and to consider the use of a prenuptial agreement (sometimes known as a premarital agreement).

For specialist advice on any family law related issue contact Maguire Family Law by email: james.maguire@family-law.co.uk or telephone:

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