Premarital Agreements: Children
Premarital agreements, such as pre-nups and pre-civil partnership agreements, are not currently legally binding in most of the UK. Although many judges will follow the terms of a premarital agreement (assuming that certain criteria are met) they are not obliged to do so and can rule differently in the case of a divorce or separation if they see fit. One thing which can cause a judge to disregard a premarital agreement is the presence of children, particularly children which were born/adopted after the couple signed the initial premarital agreement. The law surrounding premarital agreements is complex and vague, although the court will often make rulings which are beneficial to the welfare of a former couple’s children.
How children could affect premarital agreements
If you and your former partner have children after a pre-nup agreement is signed, there can inevitably be legal issues when it comes to custody and child support payments. As premarital agreements are not currently legally binding for most of the UK, a judge is likely to take into consideration how the premarital agreement will affect the welfare of a couple’s children if it is enforced, meaning that they could potentially decide to disregard a premarital agreement for the benefit of a couple’s children.
Talking about your children in your pre-nup
It is crucial that you and your partner have a conversation about the financial support and provision which would be provided for your children if you were to divorce , highlighting these provisions in your premarital agreement. It doesn’t matter whether the children in question are existing or being planned (and haven’t been born yet), it is nonetheless essential to outline their provisions in your premarital agreement. Both parties should clearly outline what assets their children will receive if the marriage ends, ensuring that there is no vagueness surrounding the issue. Though this is an unpleasant conversation to have before a marriage or civil partnership takes place, it ensures that your children are not fought over if the marriage or civil partnership comes to an end. If the judge upholds the points outlined in the premarital agreement, then the assets which are for the children of the couple will be safeguarded and will be put to one side as an inheritance for the children.
Can children cause your premarital agreement to be deemed “unfair”?
When premarital agreements are drawn up, it is advised that the financially weaker partner should be given a “fair” share of the couple’s joint finances in order for the agreement to be upheld in court. If a judge decides that an agreement is unfair to the financially weaker spouse upon divorce , they may dismiss the agreement as “unfair” and rule accordingly. Children can affect the fairness of a premarital agreement. For example, if one party is going to support the children more often than the other, then a judge wants to ensure that the party in question has enough money in order to provide the child with a good standard of living. If the original premarital agreement leaves one of the parents at a significant financial disadvantage (i.e. they would struggle to look after their children) then the court may decide to distribute the couple’s assets and finances differently in order to benefit the child and ensure that both parents are able to easily raise the child without unreasonable financial burdens.
Keeping your premarital agreement up to date
As a general rule in divorce proceedings, children take priority before anything else is considered. It is, therefore, a good idea to amend your initial pre-nup to include children, especially if they are not explicitly mentioned in your initial agreement or were not planned. It’s also a good idea to keep your premarital agreement up to date in general, as a judge is more likely to disregard your agreement upon a divorce if the agreement is old and circumstances have significantly changed since it was signed.
Including your children and their inheritance in a premarital agreement is a complex and intricate process. As the agreements are not usually legally binding, it is important to ensure that you draft an agreement which will hold weight in a court upon a divorce or separation. Need legal support for these kinds of issues? Get in touch with Gulbenkian Andonian Solicitors today and see what we can do for you.