Pre-nup ????

FBaby

But I'm female and better off....and want to protect my assets?

My OH is male and better off and also cares about his assets (especially after having lost half of it first time around) but Thank God he didn't told me he wanted to have a pre-nup because of it. I would have respected him a lot more if he'd said he never wanted to marry me because he didn't want to take the risk than saying he wanted marriage but not for better or worse.

As it is, it was a risk for me too as if/when we both inherit, it will become me in the position of potentially losing out more financially, but I married him with that knowledge because I thought he was worth every penny.

cici71

Wow!!! Loads of great advice and food for thought!!! Thank you everyone. To answer some questions... We have been together 10 yrs. I have children from another relationship and they are both at Uni and not dependants. He pays most / half the utilities and I pay the mortgage (just always been that way). He was made redundant twice in those ten yrs (once for 18 months) and I paid everything. He now has a v good job and pays a fair share of everything! I just want the house to remain mine I guess. But I guess marriage scraps that!!! I either marry or don't is the solution!! Thank u all for your contributions

meritaten

cici - from what you say, your partner HAS invested in the property by paying utility bills etc - so a divorce court would take that into account. and if you do marry then the house doesn't have to left solely to your OH - you could specify a third each to children and himself in a very simple will. He would only inherit ALL if you died intestate.

WillowCat

There is a lot of case law which show that nuptial agreements - including pre-nups are given weight, sometimes decisive weight.

However, as another poster mentioned, no agreement can "oust the jurisdiction of the court", meaning that in order to uphold the agreement if one party does not wish to stick to it, you do have to go to court for a financial remedy.

The most important case is Radmacher v Granatino ([FONT=&quot]Radmacher v Granatino [2010] UKSC 42) where the supreme court upheld a pre-nup with the only exception that the husband was awarded enough money for housing while the children were minors, with the proviso that he downsized at that point into a more modest property which would revert to the wife upon his death.

At paragraph 75 the supreme court made the general proposition:[/FONT][FONT=&quot]“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.


[/FONT][FONT=&quot]Briefly, freely entered into means there must be no pressure, or duress towards a party to sign an agreement, a full appreciation of it's implications means there must be full disclosure of assets and liabilities and normally this can all be taken to be true if the parties (or at least the party who may resile from the agreement) take independent legal advice.

The circumstances prevailing (at the time of breakup) it would not be fair to hold the parties to their agreement means that if circumstances have changed in a way that was not forseen then there may need to be an adjustment to the agreement.

No agreement can prejudice the reasonable requirements of any children (this was the point that caused the divergence in the Radmacher case, and also Luckwell v Limata where the young children should see both parents having a decent standard of living). I assume here you are not planning any more children together?

It is unlikely to be fair that one party is left in "a predicament of real need" while the other has "a sufficiency or more". But real need is measured as the avoidance of destitution and not 'reasonable requirements'.

It is most likely to be fair where the agreement adresses pre-marital assets and/or inheritance etc. It is unlikely to be fair if it tries to give joint contributions (i.e. running a business together or similar) to one party.

For information, I have just (last week!) had a final hearing where the judge upheld a separation agreement which my husband wished to resile from, and although not all the safeguards had taken place - i.e. no formal disclosure and he only had brief legal advice - the court upheld the agreement entirely. :T[/FONT]

cici71

meritaten wrote: »

cici - from what you say, your partner HAS invested in the property by paying utility bills etc - so a divorce court would take that into account. and if you do marry then the house doesn't have to left solely to your OH - you could specify a third each to children and himself in a very simple will. He would only inherit ALL if you died intestate.

Meritaten - you said something very interesting!! Only when I die? I'm happy for a third if I die but what I'm worried about is if the relationship ended and got nasty, I'm worried I would be forced to sell my home just to pay a settlement. I'd be made homeless (well no, I'd have to find and live in a 1 bed flat!!)

HappyMJ

cici71 wrote: »

Wow!!! Loads of great advice and food for thought!!! Thank you everyone. To answer some questions... We have been together 10 yrs. I have children from another relationship and they are both at Uni and not dependants. He pays most / half the utilities and I pay the mortgage (just always been that way). He was made redundant twice in those ten yrs (once for 18 months) and I paid everything. He now has a v good job and pays a fair share of everything! I just want the house to remain mine I guess. But I guess marriage scraps that!!! I either marry or don't is the solution!! Thank u all for your contributions

cici71 wrote: »

Meritaten - you said something very interesting!! Only when I die? I'm happy for a third if I die but what I'm worried about is if the relationship ended and got nasty, I'm worried I would be forced to sell my home just to pay a settlement. I'd be made homeless (well no, I'd have to find and live in a 1 bed flat!!)

Don't forget about his pension. You can give up your rights to the pension in his name in exchange for the house in a divorce. You could split the pension too but I'm sure you would rather keep the house. Does he not have any savings in his own name? You might in the event of divorce need to re-mortgage your house to buy him out. You do know the value of the equity is in your favour. You would get a few agencies around to give you a value. You would point out everything that's bad with the property when they're walking through to get a low valuation. 10% of the value is then deducted for selling costs then the outstanding mortgage and any early repayment penalty is deducted then you split the remainder. That's the maximum figure you would need to buy him out. What would most probably happen is the value of the property on the date he moved in 10 years ago, so you got back what you came into the relationship with, would also be deducted and he would get half the remaining figure. It doesn't end up being a particularly large figure and don't forget about the pensions.

FBaby

but what I'm worried about is if the relationship ended and got nasty, I'm worried I would be forced to sell my home just to pay a settlement. I'd be made homeless (well no, I'd have to find and live in a 1 bed flat!!)

That might already be a risk as it stands without marriage as 10 years together with him contributing towards the household bills (the fact that he pays one thing and you pay another becomes irrelevant), means that he would likely have a stake in your house anyway if he wanted to take it that way.

The reality when people separate in these conditions is that many are reasonable and wouldn't claim for the other party's house. If they do either because they really have contributed towards it regardless of the fact their name is not on the deed or because they are bitter, they would have to be prepared to go through the courts to do so, and that is very exhausting, time consuming and costly, so there has to be a good chance to get a good chunk of equity to make it worth doing. Most, even if they consider/threaten to do so, don't go ahead with it and just move on.

Of course, marriage makes it much more straight forward. I think you are better off accepting that although your name is on the deeds, your house is not totally securely yours any longer, but that doesn't mean you would end up destitute and homeless if things were to go wrong. You've been together for 10 years, loving each other to the point of wanting to commit fully, so in all chances, you'll still be together in many years to come.

meritaten

I understand your point cici, as I and others have pointed out - he can already claim an interest in the house. I just wondered if you had thought about making a will when you marry? assuming that you would still want your children to inherit 'something'?
I very much doubt a divorce court settlement would leave you homeless. I am sure that an agreement could be reached without having to sell your home.
anyway - I wish you the world of luck and happiness when you marry!
Positive thoughts hun!

cici71

HappyMJ wrote: »

Don't forget about his pension. You can give up your rights to the pension in his name in exchange for the house in a divorce. You could split the pension too but I'm sure you would rather keep the house. Does he not have any savings in his own name? You might in the event of divorce need to re-mortgage your house to buy him out. You do know the value of the equity is in your favour. You would get a few agencies around to give you a value. You would point out everything that's bad with the property when they're walking through to get a low valuation. 10% of the value is then deducted for selling costs then the outstanding mortgage and any early repayment penalty is deducted then you split the remainder. That's the maximum figure you would need to buy him out. What would most probably happen is the value of the property on the date he moved in 10 years ago, so you got back what you came into the relationship with, would also be deducted and he would get half the remaining figure. It doesn't end up being a particularly large figure and don't forget about the pensions.

Hi - unfortunately, no savings and no pension as such yet. His work has been sporadic over the past 9 yrs. He has a good job now and has started a pension. Due to the new affordability mortgage rules, I would never now be able to get a mortgage by myself (or re-mortgage) which is why I'm so reliant on my equity. I'm considered a low earner I guess (£23k) and my mortgage is interest only which you can't get now. My plan is to sell up when I'm about 60. I'm only 44 now. It must sound awful talking about my future husband in this way 😳😳 but I'm just being careful and sensible and realistic!!! S@@@ happens lol

cici71

meritaten wrote: »

I understand your point cici, as I and others have pointed out - he can already claim an interest in the house. I just wondered if you had thought about making a will when you marry? assuming that you would still want your children to inherit 'something'?
I very much doubt a divorce court settlement would leave you homeless. I am sure that an agreement could be reached without having to sell your home.
anyway - I wish you the world of luck and happiness when you marry!
Positive thoughts hun!

My will currently states my children will get 50/50 and I know my will will be void once I marry. To be honest even when I do a new one - when I die I still want my house to go to my children ?!