At Bastows, we can advice you on how a Pre-Nuptial Agreement may be of relevance. This is a subject of extreme delicacy. It needs to be approached with diplomacy and in the light of current legislation.
For those intending to marry or re-marry you may wish to set out how you will own your own individual assets. A Pre-Marital Agreement or Pre-Nuptial Agreement may protect you from financial loss in case your relationship breaks down.
People are tending towards a more pragmatic approach and recognising that a Pre-Nuptial Agreement does not spoil the romance. It is not a certainty that it will be needed but rather a support if things go wrong. It is like a life insurance policy or a will, it is a sensible precaution. We can work in tandem with your intended spouse’s solicitor to ensure that matters are dealt with sympathetically but our primary aim will be to look after your best interests.
What is a Pre-Marital or Pre-Nuptial Agreement?
A Pre-Marital Agreement is an agreement between two people contemplated and completed prior to their marriage which specifies the division of their assets in the event of divorce.
Pre-Nuptial Agreements are not legally binding in the UK. The District Judge in a financial dispute arising from marriage breakdown and divorce has wide ranging powers. However, a Pre-Nuptial Agreement is a relevant factor which the court will take into consideration when reaching a fair assessment.
Most people have heard about Pre-Nuptial Agreements, probably because of the influence of America on our society. Pre-Nuptial Agreements are legally binding in America and in parts of Europe.
Whilst a Pre-Nuptial Agreement is not enforceable in the UK, however if certain conditions are met, it may be an important factor. Judges in recent reported cases have taken Pre-Nuptial Agreements into account and they have influenced their judgements in assessing the division of assets.
In order for a Pre-Marital Agreement or Pre Nuptial Agreement to have any standing in a subsequent divorce, we recommend that the following guidelines are adhered to:
- Each party should have independent legal advice.
- Full financial disclosure should take place. This means that each solicitor should be given the complete picture in respect of your assets, income and debts, and this information should subsequently be exchanged between solicitors.
- The Pre-Nuptial Agreement should preferably be completed 3 months before the wedding. The sooner the better, but if there is a whirlwind courtship, or the matter is overlooked, it is better to complete a late Pre-Marital Agreement than none at all.
- No undue influence should be exerted. If one party is press-ganged into signing then this is a relevant factor which will be taken into account if the marriage later fails.
What Should be Included in a Pre-Marital or Pre-Nuptial Agreement?
Pre-Nuptial Agreements are designed to include an analysis of all the parties’ assets and income and how they are owned and how future ownership is intended. For example:
- How property will be divided.
- Bank accounts
- Shares and all other assets of value
- Which assets are owned jointly, which are owned solely and by whom?
- Maintenance – whether one party will pay maintenance and if so how much and for how long?
How Long Does a Pre-Nuptial Agreement Last?
It can last indefinitely, but the earlier a marriage breaks down the more weight it will carry. If the marriage lasts for a number of years circumstances can change, for example, if there are children of the marriage and one party sacrifices their earning potential to care for the children such factors could outweigh the significance of a Pre-Nuptial Agreement.
The amount of the wealth and the source of assets brought to the marriage can also have a bearing. In the end each case is decided on its own facts, and as with other areas in Family Law the judge has a wide discretion.
The English legal test for a prenuptial agreement.
“Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications? If so, in the circumstances as they now are, would it be fair to hold them to their agreement?”
Lady Hale Supreme Court Judgement – Radmacher v Granatimo 2010
At Bastows, our charges for drafting a Pre-Nuptial Agreement are small in comparison to the assets protected. For more information or to discuss your circumstances with our Pre-Nuptial Agreement Solicitors, contact us today on 02380 236025 and a member of the team will be happy to help you.