Divorce & Family

Silver divorce and second marriages: is my pre-nup valid?

It’s official, as a population we are living longer, but what does that mean in relation to divorce statistics?

Figures from Office of National Statistics (ONS) show that whilst the number of people getting divorced has fallen steadily since the 1990s, the number of people aged 60 and over who are divorcing increased by 73% when compared to the 1991 figures.

65% of divorces where the parties are under 60 are granted to women.  For the over 60s this is different with the same number of men as women applying for divorce.

This generation are more likely to have had the stereotypical roles of breadwinner and home maker and once the children have flown the nest the parties find that they have little in common to keep them together.  The fact that the process is much more straight forward and less expensive when you do not have to factor in the needs of a young family may also be a reason why older men are more likely to initiate divorce proceedings than younger ones.

Whilst divorce for those over 60 is increasing, marriages involving those over 60 are rising more rapidly than for any other age group.  This raises all sorts of issues in relation to the protection of pre-acquired wealth and business interests.

As a firm we are increasingly being asked to provide advice in relation to pre-nuptial agreements for those who are contemplating their second marriage.  In this country the documents are still not legally binding, but there has been a shift with the Courts looking to uphold terms of a pre-nup if it was entered into freely with a full appreciation of its implications, unless in the circumstances presented to the Court it would not be fair to do so.

So how can you ensure that your pre-nuptial agreement gives you the best protection?

The Court have set out some factors which would affect whether and how the pre-nup would be upheld.  These are set out as follows:-

  • has there been any duress, fraud or misrepresentations?
  • has any undue pressure be placed upon a party or has there been exploitation of a dominant position?
  • have the parties taken legal advice?
  • was financial disclosure provided before signing the agreement?
  • was the intention that the agreement be binding upon them?
  • the age, maturity, previous experience of relationships and marriage and if the marriage would actually have gone ahead without the pre-nup
  • how long before the marriage was the pre-nup signed? This should be at least 21days before the marriage.

A significant factor however is fairness and if, in the circumstances that are presented to the Court, the settlement provided for would not be fair it is unlikely that the court would uphold the terms.

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If you have a query about protecting your wealth with a pre-nuptial agreement or any other family law issue, please call us on 0800 422 0123 or contact us online.