The Office of National Statistics has recently published new data in relation to the marriages that took place in England and Wales during the course of 2014.
The statistics reveal a substantial increase in the numbers of people over the age of 65 who are getting married. When comparing marriage rates between 2009 and 2014 they reveal an increase of 56% in the marriage rate for women age 65 and over and an increase of 41% for men of the same age bracket.
People marrying in their later years have quite different needs, concerns and priorities to those marrying in their 20’s and 30’s. For example older age brides and grooms may:
- have, during their working lives, accumulated assets prior to their marriage which they wish to protect.
- be wary of the commitment to marriage, perhaps based on past experiences
- wish to preserve assets for the benefit of any children from previous marriages or relationships.
- have reached, or will be approaching, retirement. As their earning capacities draw to a close and they are dependent on pension and other capital assets to meet their day to day needs they would be unable to financially recover from a divorce as can younger generations. There is a real need for financial security.
For all of these reasons it can be very sensible and prudent for older couples to enter into a Pre Marital Agreement when marrying.
Many older couples agree that they would both want the survivor to enjoy the benefit of living in their family home but, on the second death, for their respective estates to go to their separate families. For this reason Pre Marital Agreements can be prepared in conjunction with wills and estate planning. It is also important to take account of potentially expensive items either may have such as medical or care facilities. This can be included in such agreements.
Whilst present statute law does not make pre-marital agreements binding, the courts place considerable weight on such agreements. The leading case is Radmacher v Granatino, heard in the Supreme Court in 2010, in which the principle was established that “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”.
It is anticipated that this is an area on which there may be legislation in future years. The Law Commission, who advise and makes recommendations to Parliament on laws, have recommended that legislation is passed to introduce qualifying nuptial agreements into law as binding. As a consequence, we are advising out clients to comply with the Law Commission criteria to ensure that any agreement has the maximum prospect of being upheld.
Hannah Budd is a Solicitor and Partner at The International Family Law Group LLP. Hannah specialises in the resolution of complex family law disputes, often with an international element.
The international Family Law Group LLP
© 20 April 2017