Bring out the champers! You’re engaged. But amid all of the happiness and wedding planning, it’s also important you get clued up around how best to protect yourself legally. Not that anyone wishes things to go sour and being sensible, especially while in the heavy throes of love, isn’t always top priority but it needs to be.

It’s not sexy or romantic, but being legally prepared and protecting yourself before you get married is essentially an insurance policy. Just like you do when you go on holiday – you take out insurance just in case, and it should be the same with marriage. 

To guide you through the legal jargon and know how, Lucy Naish – who specialises in private family law at Knights’ Brighton office, shares her top tips on preventing pain in the future and putting your personal needs first – legally and financially.

Which conversations do you wish couples would have before they marry?

Having discussions about having children, how to divide/share money, having joint accounts, how to handle conflict and a potential separation can greatly assist.

What’s the most common regret when couples divorce?

One of the key things I have found that divorcing couples have regretted is not obtaining legal advice sooner, to understand what they may be entitled to and their options going forward. Often people may feel that they can navigate this difficult time of their lives themselves, or they may want to save money, but an initial meeting with a legal professional can, at the very least, arm them with enough information to help them make a decision on what to do next. Also being kinder on themselves! Divorce is not easy and is an emotional rollercoaster, seek emotional support.

No one wants to put a downer on an engagement, but why is it so important to get legal paperwork in order before you get married?

Marriage should be a celebration of love but it is also a legal commitment. To protect their assets, couples can look at entering a pre-nuptial agreement that clearly sets out their intentions as to how these assets should be divided in the event that their marriage breaks down in the future. People may feel that it’s counterintuitive to discuss breaking up before they even get married, that it’s not particularly romantic, or that they don’t have significant assets so it doesn’t apply to them. But it’s best to have this conversation with your partner beforehand, as entering into a pre-nuptial agreement can help to alleviate stress, and provide clarity, further down the line. 

What about prenups, are they legally binding in the UK?

Whilst not strictly legally binding, since a High Court Case in 2010, the Court will consider a pre-nuptial agreement that was freely entered into by both parties with a full understanding of its implications, unless circumstances mean it would be unfair to hold them to it. Therefore, when couples enter into one it is essential that they expect to be bound by it. When considering whether it is fair or not, the Court will take into account a number of factors, including whether it has been entered into of their own free will, whether there has been any duress, whether they both obtained independent legal advice, the level of financial disclosure and the circumstances at the time of entering (include age and emotional state), and if there are any children.

What three things would you encourage every newly engaged couple to do? 

1. Keep records of your assets (including supporting documentation) – when they were acquired, and what contributions were made, particularly relevant if you are looking to “ringfence” pre-marital or inherited assets for example.
   
2. Obtain legal advice on protecting assets acquired before marriage, business assets or trust assets; protecting your children’s interests and agree how you will manage finances between you and your partner, including the division of finances should your relationship breakdown. 
   
3. Seek advice from a financial planner around whether separate bank accounts rather than joint accounts might be better, especially if one partner has a lot of debt.

Which documents should people keep safe before and after they get married?

A Will should always be kept safe, whether couples are married or not. Likewise, after a couple marry, they should keep their marriage certificate safe as this will be required when updating their name on their passport, driving licence, bank accounts for example but also will be required should their marriage unfortunately break down and they look to get divorced. If the couple also enter into a pre-nuptial or post-nuptial agreement this should be stored safely as it is important document that they may seek to rely on should they divorce in the future. 

If you have more to lose financially, should you get married?

Some couples may feel that they already act and feel like a married couple and don’t need a piece of paper to prove it. However, beware of the “common law marriage myth”, there is no automatic entitlement to financial protection as a result of living with somebody, however long you have lived together.

If you have children from a previous relationship, should you consider legal guardianship? 

A step parent does not automatically gain parental responsibility for their step child. This could potentially prove problematic if, for example, a child had an accident and required medical treatment but the parent with parental responsibility was uncontactable, leaving the step parent unable to give consent. They can acquire parental responsibility and have the same legal rights and responsibilities as a biological parent but they would need to be married to the biological parent and also obtain the written consent of every other person with parental responsibility.  A Legal Guardian is a person who takes over a parent’s parental responsibilities after their death so would not be applicable if the parent was still alive but can be nominated in their Will.

If you partner has any debts, what happens when you marry – are you also legally liable for these? And are any debts exempt? 

Getting married to someone doesn’t mean you automatically inherit their debts. Any debts in their name only will be solely theirs. Any joint debts though that you have together, will be treated by the lender as “jointly and severally liable” and you may be liable if your spouse is not able to keep up with their part of the repayment. If a married couple decide to divorce though, all debts will be taken into consideration when working out what a financial settlement will be, although loans from family/friends can be considered as “soft loans” and arguments can be made that these should not be factored in.

How does getting married affect your pension?

Pensions are generally considered to be matrimonial assets, meaning that in the event that a couple’s marriage breaks down, the pension value may form part of the matrimonial pot available for distribution between the parties, potentially leaving them with a lower pension pot than they had envisaged having access to during their retirement. Also, if you’re a member of a company pension scheme and you decide to get married, you may want to change the nominated beneficiary for your pension if you wish your partner to receive the benefit if you die. 

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