My fiancé and I delayed our summer wedding plans at the start of lockdown. This means a significant time will have passed by the time we do eventually marry and I’m worried about the status of our prenuptial agreement. Will it still be valid at a much later date, even if our financial situations have changed since we made the agreement?
The government announced that from July 4, small marriage and civil partnership ceremonies had the go-ahead to start again, says Christina Pippas, family law associate at Collyer Bristow. While this was great news for some, for many couples such as yourselves the notion of a socially distanced wedding and the tighter restrictions brought in on the September 28 has led to further disappointment. This is understandable.
Under the guidance, in addition to the restriction of limiting attendance to 15 people, social distancing of one metre between households has to be maintained at all times and hands should be washed before and after the exchanging of rings. Singing and playing instruments should be avoided and there is a “strong recommendation” that there should be no reception afterwards. It is therefore unsurprising that you, along with many other couples, find yourselves in a position of wanting to postpone.
As to your concerns about the status of your prenuptial agreement, I would definitely suggest you go back to the firm that advised you on it to check its validity with them. However, when deciding whether or not to seek such advice you should bear in mind the points below.
When you do eventually marry, Covid-19 aside, most prenuptial agreements already factor in the possibility of a delay and are drafted on the basis that the marriage will take place within six to 12 months of the prenuptial agreement being signed. If you marry within this timeframe your prenuptial agreement will still be valid.
It is important however that you check that this provision has been included in the agreement. If not — or you are outside this period — you will need to draw up a fresh agreement or an amending deed to it.
If there has been a material change in your financial situation you may wish to review your current agreement and your options for renegotiating its terms. If, for example, there has been a significant and potentially long-term decline in your assets or income, one option may be to execute a deed amending the terms of the current agreement. Even without any such changes to your situation, it may be advisable to execute a deed anyway confirming that you still wish to be bound by the terms of the original agreement.
Prenuptial agreements play an important role in marriages, allowing couples to decide what they want to happen financially if, for any reason, the marriage fails. Accordingly, if your prenuptial agreement requires some tweaking, now is a good time to start making plans as it is advisable to finalise an agreement at least 28 days before the wedding.
Simon Blain, partner in the family department at law firm Forsters, says you are far from alone. Many couples have decided to postpone their weddings until next year. Others are proceeding with small, family-only ceremonies, and planning to have the reception in happier times. I have spent a lot of time this summer making sure that agreements negotiated before March will still be effective when my clients do actually get married.
It is not uncommon for pre-nups to be signed well ahead of the wedding and sometimes before a date has been set. In my experience, pre-nups usually specify that they will continue to be effective even if the ceremony takes place six months or a year later than planned. I suggest you check your agreement to see if it is worded that way, in which case there should be no reason to revisit it. However, you will have to amend it if the delay takes you outside that window, or there has been a significant change in financial circumstances.
Your question raises an interesting point about the purpose of pre-nups. They are intended to provide a framework for a financial settlement in the event you divorce at some point in future. Pre-nups are therefore designed with uncertainty in mind: when we are drafting them, we don’t know how long the marriage might last, whether there will be children, or what the parties’ respective financial position will be when they divorce. A good pre-nup will be drafted so as to take account of uncertainty, and be designed to provide a fair framework for a financial settlement in a range of circumstances.
For that reason, provided your agreement allows flexibility for the wedding date, I would not be too concerned about changes in your financial circumstances, if you are referring to fluctuations in the value of investments or properties.
However, if there has been a really big and unexpected change, for instance because one of you has lost a job, or has received an unexpected inheritance, then I certainly think the pre-nup should be reviewed to make sure it is still likely to be upheld.
The lawyers who drafted the agreement should be happy to advise you about whether it needs to be reviewed. Even if they think it does need to be updated to reflect the changed circumstances, it is likely to be a question of making minor amendments, rather than starting from scratch.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
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