Re: Spring 2016 | Page 39

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