Do people go into marriage with their eyes wide open?

When people get married, it’s a whirlwind of romance, excitement and planning the big day. The average modern wedding takes about 11 months to plan, over 528 hours (22 whole days). But how much do the to-be-weds understand about the legal and financial implications of marriage? Here, Frances Bentley looks at how couples can go into marriage with their eyes wide open.

Being in the process of planning my own wedding, I can certainly believe the amount of time that goes into it. It is hard not to get swept up in planning the actual wedding day, and sometimes there is a much lesser focus on what marriage actually means after the big day.

As a divorce lawyer, when clients come to me, they say that they did not understand or appreciate the legal and financial implications of marriage when going into it. It begs the question as to whether there should be more education about it before people get married.

It might seem obvious that marriage means a sharing of each other’s lives, hopefully forever, so maybe it isn’t needed. However, if things don’t work out, a lot of people don’t often understand what would actually happen to their finances on divorce. Maybe it isn’t the most romantic thing to think or talk about before you get married, but actually understanding and knowing the implications might mean that people are going into marriage with their eyes open.

I think it is really healthy to have that conversation and so people know where they stand. In my view, it doesn’t undermine the fact that the plan is to stay together forever, and of course that is what the aim is. I actually think it is a bit of a red flag if your future spouse reacts badly to that conversation.

So how can you protect yourself financially if you are getting married?

One way that couples that are to be married can protect their financial position in the event of a future separation is to enter into a pre-nuptial agreement (or a post nuptial agreement if they are already married).

Nuptial agreements can detail what is going to happen with finances in the event of future divorce and whether, for example, one person’s inheritance, or assets brought into the marriage are to be “ringfenced” from any future division of assets on divorce. It allows both people entering into the marriage with knowledge of the other’s financial position and some clarity.

Whilst nuptial agreements are not technically legally binding in England and Wales, they are being upheld much more by the courts and are persuasive, as long as they have been entered into procedurally correctly, both parties have taken legal advice, and are considered to be “fair” to both parties. They can also be reviewed throughout the marriage to take into account any changes in circumstances and ensure that they remain to be “fair”.

On a divorce, the starting point legally or finances is a 50/50 division of all assets. The court would then look at whether or not that is fair, and whether there should be a departure from that starting point, taking into account a number of factors. The factors include what the parties or any children “need” financially, what contributions have been made prior to, during and after the marriage, the standard of living enjoyed amongst other factors, one being whether there has been any pre-nuptial agreement entered into and whether that should be upheld.

The court will look at what is fair and reasonable, in all of the circumstances of the case, and if, the pre-nuptial agreement remains to be fair and reasonable, it is very likely to be upheld and assets brought into the marriage are likely to be protected. It does therefore offer protection and clarity and an understanding of the other person’s financial position before the marriage.

If you need advice on this topic, or any other matters concerning divorce or family law, please get in touch with our team at McAlister Family Law.