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Pre-nuptial agreements

We understand that when you get married, it may not be your first time, or you have been around a while and have your own wealth or family wealth that you need to protect should your marriage end in divorce.

We also understand that entering into a Prenuptial Agreement is unromantic, but sometimes essential. We know how important your relationship is and so we aim to negotiate and deal with the implementation of your prenuptial agreement with sensitivity. We know how hard it is for clients to start the discussion with their partner about protecting their assets. The concern is too fold, how do I support and protect what I have? How can I achieve this without damaging the relationship I have with the person I want to marry? However, surely honesty and integrity are the foundations of any marriage?

Legal status of pre-nuptial agreements

The law in relation to pre-nuptial agreements has developed following the Supreme Court Ruling in the case of Radmacher v Granatino 2010. Following the court decision in this case the Law Commission published a report entitled Matrimonial Property, Needs and Agreements putting forward legislative reform, while this has not yet been finalised some of the proposals of the reforms may become law in due course, setting out the criteria for what will be known as a “Qualifying Nuptial Agreement”. The agreements must meet the following:

  1. The agreement must be contractually valid, in that there should be no doubt that the parties entering into the agreement are doing so of their free will.
  2. It must be validly executed as a deed and contain a statement signed by both parties.
  3. It must not have been made within the 28 days before the wedding.
  4. Both parties to the agreement must have received disclosure of the other party's financial situation when entering into the agreement.
  5. Both parties must have received legal advice at the time they entered into the agreement.
  6. If the agreement fails to make sufficient financial provision for children, it will be set aside by the court.
  7. Both parties' needs must be met, by the settlement terms of the agreement. The possibility of ongoing financial provision for a party caring for children is important. An agreement that results in a party receiving nothing or very little would not be upheld by the court.

The law in respect of pre-nuptial agreements is by no way certain, but there are clear advantages to entering to the agreement. It allows for clarity, allowing you to agree at the outset what would happen in the event of your separation. There is transparency right from the beginning both parties know the others financial positions before entering into the marriage. In the long run, entering into the agreement could save your legal costs escalating should you divorce later down the line. You are able to ring fence pre-marital assets thereby offering as much protection as the court will allow to those assets you brought into the marriage. If the other party has significant debts, these can be isolated at the start, meaning it would be easier to protect your assets from being used to satisfy those debts later on.

Although the thought of an agreement is unromantic, entering into an agreement that is fair, sometimes lengthy and laborious, can look to those life changing events, the birth of a child, the loss of physical or mental capacity, and still offer the protection needed.

Pre-Nuptial Agreements may not be entirely binding, but they do go some significant way towards persuading the court about the parties’ intentions when entering into the marriage. It is always better to consider with the benefit of forethought instead of hindsight.

Family Team

Lindsey Canning

Deborah Marsh
Associate & Collaborative Lawyer

Victoria Walker
Family Law Executive

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