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24 June 2020

Has your wedding (or civil partnership) been delayed by COVID-19? Put that time to good use…

This year’s wedding season has been ruined by an uninvited guest. Spring and early summer weddings have already been postponed. Late summer weddings may be able to proceed, but at the time of writing nothing is guaranteed. Weddings that do go ahead will be smaller and more intimate affairs than originally planned, with vulnerable guests unable to attend at all. Many couples have pre-emptively opted to defer the happiest day of their lives, hoping for more favourable conditions in 2021.

Dispiriting as this is, engaged couples can put the delay to good use by reflecting on the less glamorous aspects of wedding preparation.

Now is the time to make (or update) a will

Engaged couples who do not have wills in place should take advice on making them immediately. If one partner dies before the postponed wedding, the surviving partner will inherit nothing under the rules of intestacy. With weddings being delayed by a year or more in some cases, it is particularly important for couples to ensure they are making the provision they want for each other on their deaths.

Couples who do have wills in place should also use this time to revisit them. Any existing will is automatically revoked by marriage, unless the will is explicitly made in contemplation of that marriage. Couples need to ensure that their wills accurately reflect their current intentions with regard to the distribution of their estate, and that they will remain in effect after the wedding has taken place.

The unromantic prospect of divorce

For most couples, marriage (or civil partnership) will be the most significant legal relationship that they will ever enter into. The legal consequences of marriage and divorce are far-reaching and life-altering. Nevertheless, most couples begin their marriages having done less legal due diligence than they would when buying a second-hand car. Anecdotally, it is often only once the divorce proceedings begin that shocked spouses begin to fully understand what they have let themselves in for.

Postponing a wedding gives breathing space to take stock. It is therefore the perfect time to think about the legal ramifications of the institution of marriage, and make plans for the future. In this context, it may be appropriate for couples to think about entering into a pre-nuptial agreement.

There is a common perception that pre-nuptial agreements are only for the very wealthy, and that they are unromantic. It is absolutely not the case that pre-nuptial agreements are only for the very wealthy.

The purpose of a pre-nuptial agreement is to set out what should happen to the couple’s assets if they were to divorce in the future. They are often used to protect the wealth of the financially stronger party, by limiting the extent of their spouse’s claims to their assets. This protective effect is possible for wealthy individuals, but also for individuals of more modest means.

Pre-nuptial agreements are also useful where both parties come to the marriage with a similar level of wealth, but wish to protect their own financial arrangements. For example, a couple could be marrying later in life, both with grown children from previous relationships and with inheritance tax planning in place. A pre-nuptial agreement could be used to provide reassurance that those plans will not be disturbed by divorce.

Take your time, and get good advice

Crucially, in England and Wales pre-nuptial agreements are non-binding. This means that a family court judge has discretion to ignore or alter the terms of a pre-nuptial agreement if he or deems it appropriate to do so.

A judge will not uphold a pre-nuptial agreement which has negative consequences for the children of the family, and is unlikely to do so where the terms of the agreement would place a spouse at a significantly unfair financial disadvantage. Both parties need to have known what they were signing up to, so must have a good understanding of their spouse’s wealth at the time they sign the document and, ideally, the benefit of independent legal advice. It is also important that neither spouse was rushed into signing shortly before the wedding. Time for calm and considered reflection is necessary if the agreement is to be worth the paper it is written on.

However, where an agreement has been properly prepared, carefully drafted, and provides for an outcome which is fair (but not necessarily generous) to both parties, it will have significant weight with the court and is likely to be upheld. An effective pre-nuptial agreement can also make the process of divorce less painful, by limiting areas for dispute and disagreement, and allowing couples to move on with their lives promptly without the need for protracted and costly financial litigation. An investment of time, effort and money in the preparation of a pre-nuptial agreement today can repay itself many times over in the future.

It is therefore essential that individuals get good advice when entering into a pre-nuptial agreement. With months to wait until weddings can go ahead, now is the time to seek out that advice.

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