The term ‘silver nup’ is used to describe the pre-nuptial agreement that couples enter into before their second marriage to safeguard assets in the event of relationship breakdown.

This rising trend can be explained by the large increase in couples deciding to separate later on in life and then choosing to marry again after their children have flown the nest.

To be clear, pre-nuptial agreements are not always upheld by the court. To give effect to a pre-nuptial agreement the court must be satisfied that (1) it was entered into freely by both parties, (2) each party understands the terms of the agreement and (3) there are no other relevant circumstances which would mean that it would be unfair to hold the parties to the agreement. * An example may be when the terms of the agreement if implemented would leave one party in ‘real need’ which could not have been intended at the time the parties entered into the agreement.*

Successfully prepared agreements can provide for the ‘ring fencing’ of assets acquired prior to the marriage and then set out the detail of what each spouse will receive on divorce. On relationship breakdown, without such an agreement in place, the parties may have a financial settlement imposed on them by the court. This could result in the transfer or sale of certain assets, including those that were intended to pass to a party’s own children in the event of death.

No doubt opinion will remain divided over the idea of a ‘silver nup.’ Many who have found love for the second time may well consider the idea unromantic. However, from a family law perspective, if prepared correctly, they can be a valuable tool in providing clarity and wealth protection during difficult times.

It is important that specific legal advice is obtained before entering into such agreements to ensure they have the intent envisaged by the parties.

For further help or advice, please contact Samantha Gunnell, Senior Solicitor in the firms Family Department.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

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