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In the UK, a prenuptial agreement, informally referred to as a ‘prenup,’ is a legal document drawn up between a couple before marriage. A prenup will outline how the couple’s assets will be divided between them in the event of a divorce or separation. In absence of such an agreement, a spouse can seek to claim against the assets brought into the marriage by the other, no matter how short the relationship is and irrespective of whether your spouse has made any form of financial contribution to the marriage at all.

For couples entering a civil partnership the same type of document is called a pre-registration agreement or a pre-civil partnership agreement.

How Do Pre-Nuptial Agreements Work?

In England & Wales, prenups work by allowing you to ring-fence certain assets that you want to keep out of a future divorce settlement. It usually includes an inventory of your assets and details on how you and your partner wish for them to be managed after your marriage and how they will be divided should it break down.

Assets such as property, debts, and income are covered in a prenup to help avoid any financial surprises if the relationship were to break down. Such agreements can also include terms specifically tailored to provide for changing circumstances in future for example the birth of children.

If there are any assets which you would prefer not be divided between you and your partner, these should be included in your prenuptial agreement.

You each need to instruct a family law solicitor before signing your prenup, to ensure you have not been influenced, that you understand how prenups work and the implications of signing the agreement.

When it has been signed, your prenup is officially in place.

If you have no intention of getting married but still want a formal agreement before moving in together, a cohabitation agreement may be a better option to try to minimise risk of costly disputes later. 

The Benefits of a Pre-Nuptial Agreement?

You should consider drawing up a prenuptial agreement before you get married if you want to determine how your property and finances will be dealt with if you were to separate. 

Prenups are particularly important when people already have property or are expecting to receive an inheritance. For example, someone who has divorced before and received a property as part of a divorce settlement, may want to keep that property separate if they decided to remarry.

The main reasons we would advise you to get a pre-nuptial agreement would be:

– To avoid uncertainty or conflict over finances

– To protect any money and/or assets that you have inherited

– To preserve assets for any children from previous relationships 

– To ensure you retain control of your business 

– Protection from being liable from any debts your partner has 

There have been high profile cases in the news where pre-nuptial agreements were not created before marriage and marriages have broken down. Assets and business interests owned by one partner were not protected and their ex-partners were then awarded large financial settlements simply by virtue of marriage.

How Long Does a Prenup Last?

A prenuptial agreement will last for the full duration of your marriage. The agreement can also include a clause that it be repeatedly reviewed so it can be adapted by subsequent agreement to cater for the changing needs of your family.

Is a Cohabitation Agreement the Same as a Prenup?

If you are not yet married, there are two types of agreement you can enter, a cohabitation agreement or a prenuptial agreement.

A cohabitation agreement is for couples who are living together, but don’t have plans to get married or enter a civil partnership. A prenup or pre-registration agreement is for couples who are planning their marriage or civil partnership.

What is a Post-Nuptial Agreement?

A postnuptial agreement, or a postnup, allows those who are already married or in a civil partnership to set out what would happen to their assets if they were to separate or get divorced.

This may be because they didn’t enter into a pre-nuptial agreement before getting married, or where there has been a separation followed by a reconciliation.

Similar to a prenup, a postnup sets out how your property, investments and finances will be divided if you choose to separate and covers everything from earnings and inheritances to gifts and family vehicles.

The Benefits of a Postnup Agreement?

A post-nuptial agreement might be particularly beneficial where:

– You have more savings or income than your partner

– You want to protect assets you owned prior to the marriage, including inheritances or family trusts

– To outline any ‘nonmarital assets,’ such as any business assets owned by you

– You have children from a previous marriage or relationship, and wish to protect assets for the purposes of inheritance planning

– You are set to inherit assets whilst you are married

What Can a Prenup & Postnup Include?

Pre- and post-nuptial agreements are tailored to fit your personal circumstances and can include:

– How much each of you contributes to rent, mortgage, or household bills until you’re able to vacate or sell your home, if this is what you’ve agreed

– How you will deal with any joint bank accounts, including savings, and any debt

– How you will deal with any property or the sale proceeds of a property, after paying off any mortgage or sale costs

– What will happen to any items you have bought together including cars and furniture

– What would happen to your pets

– Maintenance for either of you or any children

– Who the children will live with and arrangements for seeing the other parent

– Bonds

– Inheritance

– Stocks and shares

– Pensions

– Business interests, such as property owned for business purposes

These types of agreements are more likely to be needed when a partner already has or is likely to acquire more assets than the other.

Do Pre & Post-Nuptial Agreements Hold Up in Court? 

Not automatically and this is a complex area of the law. However, such agreements are often upheld provided they are professionally drafted to include the required safeguards and the agreement is broadly seen as reasonable and fair for both parties on separation. 

Recent family law and divorce cases have shown that a court will invariably take a prenup into account when deciding how assets between a husband and wife or partners should be divided if done properly.

If you are planning to marry and looking to create a prenup or are already married and looking for a postnup, our team of experts are here to help. We know it can be worrying contacting a divorce solicitor, but you’ll find our team approachable and easy to talk to. We also offer a free 30 minute appointment to all new clients. 

Call us on 0114 249 66 66 or request a call back below.

Howells Solicitors represented James Philliskirk and his family at Sheffield Coroner’s Court in an inquest investigating neglect from Sheffield Children Hospital staff.

Sixteen-month-old James died soon after being taken to Sheffield Children’s Hospital twice, after hospital doctors ignored his parents’ worries that James was suffering from a serious illness and repeatedly dismissed his symptoms as chicken pox. The symptoms included skin legions, lethargy, food refusal, groaning noises and a high fever of 38.5c.

On Thursday 12^th May 2022 James was taken to Sheffield Children’s Hospital on the instructions of his GP. But during both visits to the hospital that day, doctors at the hospital insisted the youngster was only suffering from chicken pox, regardless of the fact he had suffered from the illness two weeks previous.

The family’s GP sent his concerns to the hospital via a patient summary letter about the possibility of Scarlet Fever, this was read by hospital staff, but concerns dismissed In addition to this, the 111 call handler concerns with regards the groaning noise James were again dismissed by Sheffield Children Hospital staff.

James’s condition failed to improve at home and 32 hours later he was found unresponsive during the early hours by his father. James was declared deceased on Saturday 14^th May 2022 at 2.08am at Sheffield Children’s Hospital.

Instead of chicken pox James was actually fighting Sepsis brought on by a severe Group A Strep skin infection, the inquest was told.

Following a Serious Investigation by Sheffield Children’s Hospital NHS Trust, their report recognised failings in the care provided to James and his family.  Their investigation found that the GP did not access the referral pathway due the proximity of the GP surgery and Sheffield Children’s Hospital. 

The report also found that Emergency Department guidelines were not followed and no review by senior medical staff was carried out.

The inquest was told that there was no documentation that the presumed diagnosis of chicken pox was unlikely, as it was unlikely that a repeat chicken pox infection would happen so soon after. 

Furthermore, there was no record of consideration of Strep A infection after chicken pox and the large skin lesion on the wrist from the previous bout of chicken pox was not recorded.

The Philliskirk family, speaking about their tragic loss, said “James was our 16-month-old son.  He was a fun, happy, cheeky, and active little boy.  He was a much-loved son, brother, grandson, nephew cousin and friend.  James managed to fit a lot into his short life, despite Covid-19 restrictions.  He was an extremely special little boy who is absolutely adored by his family. 

“There are no words to describe how much our little boy meant to us, how much joy he brought to us and those around us and how he still is profoundly loved by us all.  We will forever cherish the happy and fond memories that we created with him.”

The jury recorded a narrative verdict from the inquest, which finished on the 27^th of April, which read: “Following a number of assessments in hospital James was misdiagnosed and was not provided with treatment in line with departmental guidance. He developed sepsis and died at home on 13 May 2022. His death was contributed to by neglect.”

Following the 4 day inquest Assistant Coroner Abigail Combes has completed a Prevention of Future Death (PFD) Report noting 6 actions for Sheffield Children’s Hospital to complete, and provide an action plan to this affect within the next two months.

Senior Medical Negligence Solicitor from Howells Solicitors, Jenna Kisala, said “This was a tragic turn of events, and our thoughts are with the Philliskirk family and other families we have helped in the past..  

“We hope that the Serious Investigation report, the conclusions of the inquest and the PFD report can allow procedures to be reviewed and developed in children’s hospitals and that lines of communication between medical staff can be improved to not allow a tragedy like this to happen again.”

The Philliskirk family are assisting all organisations and services who were involved with James in making improvements for future child deaths. The Philliskirk family are organising 16 things in James’ memory as he was 16 months old when he died.  These include donations to 4Louis charity who provide memory boxes for parents/carers of babies and children who have died.  There is a bright orange fish plaque at The Deep in Hull and a bench in Bole Hill Park which have been crowd funded by friends and family. Also, an outdoor climbing frame has been installed in his memory at Bole Hill Nursery.

– You will decide who receives your estate, not the Crown via the rules of intestacy 

– Reduced risk of inheritance disputes

– There will be less stress for your executor/next of kin after you’re gone

– Your funeral will be how you want it to be

– Safeguard the preservation and future of certain aspects of your estate with ‘trusts’

– You may pay less Inheritance Tax

– Protect your pets by deciding what happens to them

– Protect your investments, such as monies in shared bank accounts and joint tenancies on property

– Protect a business or the shares in a business you own

– For those with more complex families, whether this involves 2nd / 3rd marriages and/or children from previous relationships, a Will provides certainty that your wishes will be carried out and no members of your family will not be overlooked

– It can protect your digital assets such as photos, websites, online purchases, emails and social media accounts

– Usually, without a Will, your estate will be left with your next of kin due to the rules of intestacy. If you are estranged from your next of kin or have not had the conversation about what you want to happen with your estate, what you want to happen may not happen.

– There is also a misconception of a ‘common law marriage’ – If you are unmarried but are in a long-term or co-habiting relationship, your partner would not automatically be entitled to anything.

DIY Wills

As a Will is such an important aspect of your family’s infrastructure and future, it’s crucial that the document is legally binding and has your family’s best interests at its core.

To achieve this the following needs to happen:

– The Will needs to be written correctly and clearly and contain no errors

– The Will needs to be witnessed correctly

– You need to be in a correct state of mind when creating the Will

– The Will needs to be stored safely

– The Will needs to be officially altered when major changes in your life area made i.e., marriage, children, large purchases etc

– You need to seek legal advice

Avoiding any of the above can risk the validity of the Will.

Whilst creating a Will yourself may appear a more cost-effective option now, a DIY Will may cause various issues later for your family. These issues can include:

– Errors can cause delays and additional costs after you’re gone, leaving your family additional stress

– The Will may not be correctly signed and witnessed, making the Will invalid

– Contents of the Will being challenged, which could include your state of mind whilst creating the Will being challenged

– The Will does not reflect changes in your personal circumstances

– Your family may pay additional inheritance tax

– Your family situation is complicated, and this has not been reflected correctly in the Will resulting in your wishes not being fulfilled

– Your Will is complex and therefore a DIY kit is not sufficient for the purpose

– If you use a DIY Will kit, the company that supplies it won’t take any responsibility for your will being correctly made.

Trusts

There may be circumstances where you would prefer that your estate doesn’t go directly to the beneficiaries when you die, but rather, that it is held on behalf of those beneficiaries. This is known as a trust and can be included as part of your will.

They are most seen in the following circumstances:

– You wish to protect your estate against possible care fees in the future

– You have a spouse or partner but children from a previous relationship

– You wish to leave some of your estate to a vulnerable or disabled person

A trust can include:

– cash 

– property

 – shares

 – land

Tax Planning

Without seeking advice, it can be difficult to know whether a particular course of action is the most tax efficient way to achieve your retirement goals.

For example, many clients will start their estate planning to reduce the tax burden on their children. Others make substantial gifts to their family, often in the belief that they can reduce the care fee burden.

Any gift needs careful consideration as there may be unforeseen tax implications or consequences for future care funding.

Power of Attorneys

Nobody can predict the future, and there may come a point where you no longer have the mental capacity to make important decisions and carry out your retirement plan.

A Property and Financial Affairs Lasting Power of Attorney will enable you to choose who should be responsible for your legal and financial affairs if needed.

A Health and Welfare Lasting Power of Attorney will enable you to select who should make health and social/welfare decisions if you could not make these yourself.

If you have not set up a Lasting Power of Attorney whilst you were able to do so, and have since lost your mental capacity, others may need to step in to look after your financial affairs.

Without either a Lasting Power of Attorney or a Deputyship order no-one has any rights to access your bank accounts, deal with any benefit claims (including a state pension), pay any bills on your behalf or generally deal with your financial affairs.

If you take the time to think about these considerations, it will put your mind at rest and allow you to enjoy your retirement.  And once you have dealt with getting your financial and legal affairs in order comes the fun part – planning what you are going to do with all the free time you are going to have.

Lindsey Rawson, head of our Wills, Trusts & Probate department, can help you create an estate plan and get all your affairs in order ready for retirement. She specialises in Wills, trusts, powers of attorney and inheritance tax planning.

Lindsey acts for clients in South Yorkshire and beyond and can be contacted by calling 0114 249 66 66 or emailing enquiries@howellsllp.com