The rise of pre-nuptial agreements
In recent years, there has been an increase in the number of clients requiring pre-nuptial agreements (‘pre-nups’). With 42% of marriages sadly ending in divorce, many couples are opting to having a pre-nup. This blog aims to address some commonly asked questions about pre-nups.
What is a pre-nup?
A pre-nup is an agreement that the couple intending to marry ‘or become civil partners’ enter into in advance of the wedding/civil partnership. The main purpose of the agreement is to specify how the parties’ assets will be dealt with in the event of the relationship breaking down.
Is a pre-nup legally binding?
Pre-nups are not currently legally binding; although it is anticipated that the law will be changed. However, as things stand, they can significantly influence a financial settlement awarded on divorce.
What is the difference between a pre-nup and a post-nup?
Absolutely none, save that a post-nup is entered into after the wedding.
Should I get a pre-nup?
It is important to obtain advice from a family law specialist so that you can decide whether it would be prudent for you to have a pre or post-nup. They can lead to fewer stresses, arguments and expense further down the road.
Top tips
At present, it is not possible to guarantee that an agreement will be upheld up by a court. However, it is clear that there are a number of steps one can take to make it more likely that a court would choose to give effect to an agreement.
Do:
1. Ensure that each party receives separate and independent legal advice so that they fully understand the terms of the agreement. Ideally, the couple should approach lawyers well in advance of the wedding. It should be signed at least 28 days before the ceremony;
2. Ensure that each party gives material disclosure to the other concerning their financial position;
3. Ensure that sufficient financial provision is made for the financially weaker party and children;
4. Ensure that each party enters in to the agreement voluntarily and they are willing to be bound by its terms in the event of divorce;
5. Ensure that the agreement has been properly negotiated and consider incorporating a review of the terms in the event of a significant change in circumstances; and
6. Ensure that the agreement is contractually valid and is signed as a deed.
Don’t:
1. Put pressure or any undue influence on the financially weaker party to enter into an agreement;
2. Fail to make material financial disclosure;
3. Sign an agreement if you are in any way unsure about its implications.
If you need advice or assistance regarding a Family Law matter then please contact our Partner and Head of Divorce and Family Law, Tracey Dargan.
Please note the contents of this blog are given for information only and must not be relied upon. Legal advice should always be sought in relation to specific circumstances.
