Prenuptial Agreements

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 prenuptial 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 prenuptial 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 preacquired 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, prenuptial 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 prenuptial 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 prenuptial agreement is a document laying out what you and your future spouse/ civil partner have agreed should happen in relation to your finances if the relationship breaks down and you separate.

As explained before prenuptial agreements do not have the status of being legally binding. However, these agreements are often taken into consideration by the court  as long as  there have been no significant events. This includes  the birth of children of the family or serious illness, and they meet the following criteria:

  • Both partners have made full disclosure of their financial position to each other.
  • Each partner has obtained independent legal advice.
  • There has been no pressure by either partner to enter into the prenuptial agreement. As a result it is generally accepted that you need to enter into the agreement at the minimum six weeks before your marriage or civil partnership.

In the event of a separation, the court considers all the relevant circumstancesand decides what a just and reasonable outcome is. Prenuptial 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.

Prenuptial agreement is a practical step you can take should you divorce to protect your assets. At Pindoria Solicitors we draft prenuptial agreements for clients who are about to marry or register as a civil partnership. We can also draft after a marriage or civil partnership has began a post-nuptial agreement.

Prenuptial agreement are essential if you are about to enter into second or subsequent marriages and wish to take steps to protect the inheritance rights of your children from a former relationship. Prenuptial agreements are also used document the agreement reached by the parties prior to the marriage in respect of property, maintenance and child support or child custody issues.

Why do I need a Prenuptial Agreement?

A well-drafted prenuptial agreement will give asset protection to anyone who has assets, such as a home or investments which were acquired prior to the marriage.

English courts will recognise and enforce prenuptial agreements if they comply with certain criteria, including without limitation:

(a) The agreement must not be entered into under duress and must be voluntary. We recommend that the prenuptial agreement is signed at least 21 days prior to the wedding.
(b) There must be a complete financial disclosure by both parties to the agreement.
(c) Prior to signing the prenuptial agreement it is essential that both parties receive independent legal advice from separate lawyers.
(d) It cannot heavily favour one party over the other and, hence, the agreement must be fair and reasonable.
(e) The prenuptial has to including the plans regarding your current or future children.

Prenuptial agreements are not yet considered legally binding. However in recent years, English courts have given prenuptial agreements greater weight in a number of cases and have begun to treat them with significant consideration. This was after the Supreme Court decision in Radmacher v Granatino [2010] where the Supreme Court substantially upheld the prenuptial agreement the couple entered into prior to the marriage. Unfortunately it is Parliament who must bring new legislation to effect for prenuptial agreements to become binding in all cases.

Postnuptial Agreements

Unlike prenuptial agreements which are not legally binding, a postnuptial agreement, meaning signed after the marriage has taken place is legally binding.

Since 2003 English courts have accepted the validity of postnuptial agreements subject to the test of fairness and reasonableness. We will ensure that your case is professionally handled throughout to ensure all the legal requirements are met. Without a Postnuptial Agreement the courts have no guidance to establish your true intentions, and hence will go on to split assets on the prevailing legal rules.

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