Would you set off to trek through a rain forest without a map?

Enter into a business partnership without a Partnership Agreement?

Take a new job without discussing salary and job description?

Yet the majority of people in England still get married without a pre-nuptial contract.

If you are thinking of buying a property together, or planning to marry, you should be talking to your partner about money, and you should almost certainly be taking legal advice. You may intend to love, honour and cherish each other for the next 60 years or more, but if you can’t talk about money, should you really be entering into a legal or financial partnership with this person?

Many married couples never discuss how they would arrange their financial and practical affairs if they were to split up until the situation arises, at which point it may be difficult to think clearly and act sensibly.

It is now increasingly common for a married couples to state that jointly owned property belongs to them in specified shares rather than as joint tenants; many couples maintain separate bank accounts throughout their marriages or while cohabiting. But pre-nuptial contracts are still surprisingly rare, despite much recent publicity on the subject.

Currently the UK divorce courts are the venue of choice for the spouses of the very rich. The reason for this is simple: In England and Wales, divorce courts start by assuming that a 50:50 split is fair, and then either party who disagrees must explain why equality is not fair in their particular case. The court has to take into account all relevant circumstances of the case together with a statutory list of factors.

A pre-nuptial contract will always be considered a relevant factor and pre-nuptial contracts have already been successfully used to minimise the award made to the (lower earning) wife in a number of cases. Of course, a court will only be required to consider the pre-nuptial contract if either party wishes to settle on terms other than those provided for in the contract. Ideally, the pre-nuptial contract will be adhered to and there will then be no need for court involvement.

The costs of a contested divorce settlement can top £20,000.00 each just to reach a final hearing, and escalate further if the decision is appealed. The emotional costs are correspondingly high and the whole process can be combative, bitter and exhausting.

Spending £1,000 - £2,000 on a fair and sensible pre-nuptial contract can avoid that expense, and ensure that the eventual financial division is made along lines agreed by the parties themselves and not imposed by a judge.

Where there is a pre-nuptial contract the courts are not currently bound to follow its terms, however it will be strongly persuasive and anyone seeking to overturn the agreement would need good grounds to do so. If both parties have taken independent legal advice before signing the contract, and there have been no major changes in circumstances not provided for by the contract, then a pre-nuptial contract provides a great deal of protection to the wealthier party and an indication of the likely outcome of separation for both.

For advice on Pre-nuptial contracts or Cohabitation Agreements please contact Marcus Malin in the Family department at Young & Lee on 0121 6333233