Should I get a pre-nup?
Courts have a huge discretion when it comes to deciding how assets should be divided on divorce/dissolution with the ability to order the sale of property, transfer ownership of property and cash sums between spouses, divide pensions and award spousal maintenance to be paid. A prenuptial agreement (also known as a pre-nup or premarital agreement) is a good way to introduce a degree of certainty to the Court’s wide decision-making powers and to protect assets such as business interests, property or inheritance.
A prenuptial agreement is a contract entered into between two people before they get married which sets out how their assets will be divided in the event that the relationship irretrievably breaks down. Although discussing finances and contractual terms is not particularly romantic, it is sensible financial planning and can save a great deal of uncertainty and potential expense in the future should there be a breakdown of the relationship.
Are prenuptial agreements legally enforceable?
Prenuptial agreements are not automatically binding in England & Wales but are becoming increasingly accepted. Established case law suggests that Courts should follow such an agreement and hold a person to its terms unless, in the circumstances, it would not be fair to do so. What might be regarded as unfair will depend on the specific facts of each case but, generally speaking, providing the terms of the agreement meets the needs of the parties and any children of the family the agreement is likely to be upheld. The judge will look at all of the circumstances of the matter before deciding whether to enforce the prenuptial agreement and, in particular, consider the following factors:
1. There must be full and frank disclosure of both parties’ financial position.This is so both parties are fully informed of the other party’s finances and therefore whether the agreement is ‘fair’ and how it would be likely to affect them on separation.
2. Both parties must seek independent legal advice to ensure that they fully understand the terms of the agreement, the effect of the agreement on their rights and whether it is to their advantage or not to sign the agreement.
3. No undue influence must be exerted. Neither of the parties should feel under pressure to enter into the agreement. Part of this is to ensure that the agreement is entered into at a reasonable time before the marriage/civil partnership. We usually suggest a minimum of 4 weeks.
4. The agreement must be fair. Recognition should be given to the changing circumstances as time goes by, such as whether the parties go on to have children or one becomes ill and unable to work. Also, what is a fair division after a short relationship is not necessarily the same as a fair division after a long relationship.
How do I get a prenuptial agreement?
Our friendly team of family law specialists are able to discuss your circumstances with you and help you identify whether a prenuptial agreement would be suitable. If so, we can assist you in agreeing/negotiating the contents and ensuring that the agreement has decisive weight so that it has the greatest chance of being upheld should the relationship unfortunately break down. If you would like to know more about the contents of this article then please contact either Alisdair Douglas on 01603 281132 or Simon Willis on 01603 281110.
Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance