Prenuptial Agreement is a legal agreement made before marriage by a couple, setting out how they would like their assets split if they divorce.
We recommended that pre-nuptial agreements should be drafted after careful consideration of the facts and circumstances and that you fully understand the implication for the agreement and meanings of the clauses contained in them so you are fully understood what you are signing. We strongly advise against contracts drawn up without legal guidance, as poorly drafted or badly prepared pre nuptial documentation can result in substantial repercussions in a divorce case.
With two in five marriages ending in divorce more and more people are considering entering into a Prenuptial Agreement to protect and preserve pre-acquired assets. After marriage, all of a couple's assets become matrimonial assets. A Prenuptial Agreement is designed to limit the claims on those assets by the other party if the marriage ends.
Although not yet binding on the court, pre-nuptial agreements are becoming ever more popular and are a sensible means of agreeing how any assets owned by the parties at the date of the marriage are to be divided in the event of a divorce.
Frequently couples who have been married before (and who want to protect children of earlier marriages) or who have built up substantial assets prior to the marriage find comfort in setting out on paper what assets will be excluded from the matrimonial assets. In addition to this, individuals who are the beneficiaries of family trusts are asked to consider entering into a prenuptial agreement by the trustees of the trust to ensure that the family's wealth remains protected.
Any pre-nuptial agreement needs to be drafted carefully to ensure that it provides for a change in circumstances, such as the arrival of children and for this reason it is necessary for all agreements to include a review clause. In addition to this, both parties much obtain independent legal advice prior to the signing of the agreement to ensure that they are entering into the agreement by their own free will and to rule out the possibility of any undue influence from a dominant party.
A pre-nuptial agreement sets out what you and your future spouse or civil partner agree should happen in relation to your finances if your relationship breaks down and you separate.
As explained before pre-nuptial agreements are not yet legally binding. Nevertheless, the courts do take them into consideration, providing that there have been no significant events such as the births of children of the family or serious illness, and they meet the following criteria:
Both of you have made full and frank disclosure of your financial position to each other. Each of you has had independent legal advice. There has been no pressure brought to bear on either of you to enter into the pre-nuptial agreement.Therefore generally you need to enter into the agreement at least six weeks before your marriage or civil
partnership.
In the event of your separation, the court must consider all the circumstances of the case and decide what a just and reasonable outcome is. Pre-nuptial agreements are becoming more relevant to the decisions made by the courts even though it is up to the court’s discretion to take the agreement into account.
