Prenuptial Agreements:
Planning for the future
With the current rate of divorce and dissolution of civil partnerships, and recent well
publicised marital conflicts on divorce, it is no surprise that couples looking to enter
into marriage or civil partnership are increasingly considering how best to protect
assets on divorce and dissolution and avoid conflict at later stages.
Pre-Nuptial Agreements are not necessarily required for all who are entering into
marriage or a civil partnership. They are most suited to those who have inherited
family wealth and also those who are entering into second (or further) marriages
and have their own wealth and/or wish to protect assets for their children from an
earlier relationship.
A Pre-Nuptial Agreement is not legally binding on matrimonial courts. The couple
cannot waive the right to apply to the court for financial provision, even if there is a
Pre-Nuptial Agreement in place. However, the court will give full consideration as to
whether the provisions in the Pre-Nuptial Agreement should be upheld.
The Agreement should be entered into freely without coercion and should be fair.
Any Agreement which may leave the other person in financial difficulties is unlikely
to be upheld. There should be provision for review upon the occurrence of certain
circumstances, such as the births of any children, bankruptcy, disability and inability
to work etc. However, if the parties’ financial needs are adequately covered in the
Agreement, then a further sharing of assets which have been ring-fenced may be
avoided.
The Agreement should be negotiated and entered into as far in advance of the
wedding as possible, and at least 21 days before the wedding. The couple should
provide details of their assets and those they wish to retain on divorce. Both parties
should take specialist family law advice on the proposed Agreement and the
implications of entering into the Agreement.
It could be said that Pre-Nuptial Agreements are almost as good as legally binding
agreements, provided that they are fundamentally fair. However, the Agreement
is only one consideration a court would look at. Most importantly, the Agreement
must not prejudice the welfare and financial stability of any children.
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