Weddings can be delayed for a variety of reasons. Where this happens, some couples may be wondering how this affects the timing of their pre-nuptial agreement.
The timing of a pre-nuptial agreement can be a tricky thing. If it’s done too far in advance it may not be upheld, especially if the wedding is delayed by a very long time and financial circumstances could change. Done too close to the wedding it is also very unlikely to be upheld by a subsequent divorce court, as it may be feared that there was insufficient time for one party to take advice or that there was undue pressure close to the wedding.
When should you sign your pre-nuptial agreement?
In an ideal world a pre-nuptial agreement will be signed at least six months before the wedding, although most pre-nuptial agreements state that the agreement will take effect if the marriage takes place within 12 months of the signature of the agreement. This means that getting the agreement completed well in advance is always best – it avoids any potential upset in the run up to the wedding which should be an enjoyable time for the couple.
What should we do if our wedding is delayed?
Provided the prenuptial has the clause outlined above in it this should cause no difficulty.
Even if the wedding is delayed for more than 12 months a simple subsequent deed signed by the couple could provide that their previous pre-nuptial agreement will hold good despite the unforeseen delay.
So the message is simple – prepare well in advance and all is more likely to go smoothly.
Why do we need to sign our pre-nuptial agreement so far in advance?
We are sometimes instructed to prepare pre-nuptial agreements very close to the intended marriage. This is never a good idea and should be avoided if at all possible.
The courts are extremely reluctant to uphold an agreement that was not signed and completed at least 28 days before the date of the marriage. The courts are also very unlikely to recognise an agreement where the less wealthy spouse was not independently advised by their own lawyer.
The process of drafting the agreement and then taking independent advice is bound to take many weeks and sometimes months, so parties contemplating this step need to plan ahead and allow a minimum of three months for matters to be fully agreed and signed and as explained above, preferably more.
What if we can’t sign the pre-nuptial agreement before the wedding?
If the agreement cannot be signed before the wedding then there is always the possibility of a post-nuptial agreement, but once the wedding has taken place parties are often reluctant to enter into an agreement unless a further change of circumstances is due.
Sometimes we draft a post-nuptial agreement for clients where one party’s family wishes to transfer land or property and to ensure that the value transferred is agreed not to be sharable in any subsequent divorce. These are often amicably agreed by the couple who are keen to receive the gifted wealth. If no such “incentive” is apparent a post-nuptial agreement is often difficult to insist on.
In summary, pre-nuptials should be negotiated as early as possible within the guidelines above. In the family team we have over 30 years experience in preparing such agreements and are happy to advise at any stage.