Understandably
discussing a pre-nup
remains a tough subject
for some couples.
willing to be open and honest from the
outset in relation to financial issues.
A Pre-Nup isn’t essential for everyone.
However if you find yourself in any of
the following circumstances it is most
definitely worth considering:-
deed and must contain a statement
signed by the parties to confirm
that they both understand that the
Agreement is a qualifying nuptial
agreement that they intend for it to
partially remove the court’s discretion
to make financial orders.
• You are getting married in later life and
have already built up assets of your
own.
• You have children from a previous
relationship and wish for your assets to
be inherited by them.
• You are getting married for a second
time and wish to keep your assets
independent of one another.
• You are expecting an inheritance and
wish to keep it within your family.
• You have significant assets such as
properties, investments, antiques etc.
• One of you or both of you own (or
partly) own a business.
• One of you is significantly older than
the other.
• You simply want to ensure your future
financial security
(c) The Agreement has not been made
within the 28 days immediately
before the wedding. This is to ensure
that there is not undue pressure to
hurriedly sign an Agreement which
may be prejudicial, particularly with
the run up to the wedding where
there is increasing excitement.
Realistically a couple should allow at
least three months for the Agreement
to be finalised. However, if there
isn’t enough time, the option of a
Post-Nuptial Agreement can be
considered.
Whilst pre-nups cannot at the moment
be guaranteed to be 100% legally
binding under English law they are likely
to be upheld by the Court as long as
they are deemed to be fair and do not
prejudice the reasonable needs of the
couple entering into the agreement or the
needs of any children of the marriage.
(e) The parties have each received
independent legal advice at the time
that the Agreement is entered into.
To ensure a pre-nup is fair and to
strengthen its weight, it is best practice
to ensure that:
(a) The Agreement is contractually
valid (and able to withstand challenge
on the basis of undue influence or
misrepresentation, for example).
(b) The Agreement has been made by
(d) At the time of the making of the
Agreement there has been full
disclosure of material information
about the parties’ financial situation.
(f) There is provision for regular review
of the terms of the Agreement with
a view to seeking a variation to the
terms if there is a significant change
in the circumstances to ensure the
terms of the Agreement remain fair.
(g) The Agreement meets both
parties’ “needs” and take into
account whether there needs to be
“compensation” to one of them to
redress any economic disparity that
has arisen as a result of the marriage
(for example one of the couple giving
up a career to have children and look
after the family). As long as needs and
compensation are covered, if further
sharing of assets are prohibited by
the Agreement it is more likely to be
considered fair.
(h) It is essential that an Agreement does
not prejudice the reasonable needs of
any children of the family.
A pre-nup is a bespoke legal document
and a couple entering into one should
ensure they seek specialist legal advice.
There are legal consequences that arise
when you get married. Your marriage will
be governed, whether you like it or not,
by the laws of the country that dictate
what happens to assets before, during
and after marriage. If you are getting
married you need to ask yourself whether
you are happy with the legal uncertainty
and judicial discretion that exists or
whether you want the opportunity to
decide for yourself what a fair outcome
would be if the marriage breaks down.
The collaborative process may be
the ideal forum to agree the terms of
a pre-nup. Under the collaborative
process each person appoints their
own collaboratively trained lawyer and
they then all meet together, with other
professionals such as financial experts,
to work things out face to face. All
discussions are open and transparent
and allow for the couple, together with
their lawyers and other experts, to
discuss matters in an open setting so a
tailor made agreement can be reached in
an amicable way.
We have a legal guide to marriage
available on our website that provides
essential reading for anyone considering
getting married.
By Gemma Hope
39