By Joanna Newton, Partner, Stowe Family Law
February is often considered one of the more romantic months in the calendar with many couples announcing their engagement around Valentine’s Day. It is estimated that around 15,000 British couples get engaged on Valentine’s Day and it seems this year will be no exception. Google searches of engagement themed topics usually soar in February, with a 3,800% increase in the search ‘proposing on Valentine’s Day’.
With the wedding industry thoroughly back on its feet after the troubling pandemic period, couples are looking to solidify their relationship by getting engaged. The cost-of-living crisis is proving but little obstacle to the determination of happy lovers to have their dream wedding.
A survey conducted by Humanists UK in 2021 revealed that over one fifth of couples (21%) were proposed to on Valentine’s Day. Although some consider the idea of a Valentine’s proposal somewhat clichéd, the celebration of St Valentine remains a key date for lovers across the country.
However, whilst love may be in the air and all around, many are trying to keep to the more practical side of marriage preparations, particularly the financial aspects. One of the more pressing matters to come to light, and a rising consideration among wealthy couples in the UK is the role of the prenuptial agreement, more colloquially known as a “prenup”.
These written agreements are extremely common in the United States, and are particularly common among high-net-worth individuals and celebrities. Looking to the news, prenups are certainly not an unusual topic of conversation.
Gemma Atkinson has revealed recently that she is keen to sign a prenup with her fiancé, Gorka Marquez before they wed. The couple got engaged on Valentine’s Day in 2021 and have recently announced they are expecting their second child together. Atkinson explored her desire for a prenup on Steph’s Packed Lunch which she wants to have in place to protect her daughter.
Romance and realism join hands in the written document. In the US, a prenups lays out officially who will be responsible for the assets of each spouse throughout the marriage. This includes property and other large assets as well as finances. In the event of a breakdown of the marriage, the prenup will be used to identify who the wealth belongs to following a divorce. Prenups works as a safety net and a form of protection and are popular among the wealthy, particularly in the current economic climate.
At the moment, prenuptial agreements are not legally binding in England and Wales, unlike in many States in the USA. However, family courts do tend to put substantial weight on prenuptial agreements regarding the decisions around final financial orders, provided they have been properly put together by a legal expert.
Family lawyers are seeing increasing numbers of couples, in particular high-net-worths, desiring a prenuptial document to be put together to protect their assets and, in many cases, children. With the increase and modernisation of family structures, children are often born to unmarried parents who decide to wed later. Prenuptial agreements can be put in place to protect the couple’s children financially – a motivating factor for many.
There are certain specifications which are required to be upheld in order for a prenup to hold weight in an English or Welsh family court. Namely, the agreement must have been signed at least 21 days before the wedding, it must be reasonable, up-to-date, and drafted by a family lawyer. Both parties must have received legal advice and must have provided full financial disclosure.
Alongside the prenup document, many couples are choosing to have what is known as a ‘petnup’ in place. With pets, particularly dogs, being involved in engagements, weddings and considered part of the family, this can only be a natural extension of the prenup. A petnup, like a prenup, is put in place to decide in the event of divorce or relationship breakdown who the pet belongs to and avoid any unnecessary distress for both humans and animals.
For the more practical romantics, a proposal and a prenup might be the most agreeable way to get engaged this Valentine’s time.
However, there is also a document, slightly less well known, especially in the UK, called the postnuptial agreement, which works in a very similar way to the prenup, but can be put in place for couples who are already married. This may be because one partner has come into a substantial amount of money, for example an inheritance, or the couple decide that with children and assets growing generally, they need financial and legal protection in place.
A postnup again offers a certain level of protection by setting out the ownership of belongings and their fate should the marriage end. The postnup can be put in place at any time during a marriage and can be used to address the situation at the time of writing or any events in the future i.e. the birth of children.
A family court in the England and Wales will consider postnuptial agreement alongside other factors if the couple are going through the divorce process. These may include the length of the marriage, financial assets and the contribution made by each spouse. Again, the document must be drawn up by a family lawyer and each spouse must have sought legal advice.
For those who want to avoid the February rush of engagements but are in long term relationships and are perhaps considering taking the next step (for example moving in together or purchasing a property together), entering into a cohabitation agreement can provide some certainty to both parties, if the relationship doesn’t work out. Unlike married couples, cohabiting couples do not share the same legal rights and their claims are limited to financial arrangements for children and the ownership of property. A cohabitation agreement can therefore provide some protection to cohabiting couples and can record, amongst other provisions, how existing assets are owned, whether there were any unmatched contributions in any owned property, how assets will be divided on separation and also what would happen to specific funds such as any inheritances that one party may bring into the relationship.
At present, there is unfortunately very little guidance regarding cohabitation agreements. However, should they be properly laid out by a family lawyer, and follow the general rote of a prenup, they are likely to be upheld by a court in the event of any dispute if the relationship breaks down.
Perhaps this February might see the rise of the practical proposal, as more wealthy couples turn to the prenuptial agreement as a form of protection. Although not yet legally binding, this may be something the family court looks into in the near future as the popularity and need for the prenup rises.