Posted by Jemma Breban on 13th November 2014

Rachel Buckley Director Partner Family Law Company Family Law Company partner and divorce expert Rachel Buckley takes a look at pre-nuptial agreements and how they work:

A pre-nuptial agreement is a written formal agreement entered into by a couple before they get married that sets out a game plan for what they have agreed will happen to their assets in the event of a future divorce.

 So is it enforceable?

Each case will depend on the particular circumstances of the case and the manner in which the pre-nuptial agreement was entered into.

Pre-nuptial agreements are not binding in the Courts in England and Wales. Until recently they had been given little weight. However more recently the Courts have been prepared to take couples pre-nuptial agreements into account. In one landmark case known as Radmacher (Radmacher v Granatino) the Court upheld the pre-nuptial agreement.

In order to ensure a pre-nuptial agreement has the best possible chance of being upheld the following should happen as a matter of course:-

  1. Full and frank disclosure by each party to the other of their income, capital and pension provision;
  2. Each party be given and have the opportunity to obtain independent legal advice;
  3. The pre-nuptial agreement should be signed at least 6 weeks prior to the marriage;
  4. There must be no undue pressure or undue influence placed upon either party;
  5. Both parties should be in good health;
  6. The pre-nuptial agreement shouldmake provision for the wellbeing and maintenance of any children, both now or in the future;

When is a pre-nuptial agreement advisable?

Where there is an imbalance of the relative wealth of the parties to the marriage.

Where one or both parties have been married before, and come into the new marriage with assets.

Where either party to the marriage has wealthy parents.

Where there is a family business.

Where there is family money that, if the worst were to happen, the family would prefer remains within the family.

Where there are children from a previous relationship, to ensure they receive their intended inheritance.

Where either party has assets that they have built up prior to the marriage.

Should the parties take legal advice?

You do not need to use a lawyer, but there are many dangers If you draw up a document without legal advice.

The cost is minimal compared with the financial protection and benefits you will get from a properly drawn up pre-nuptial agreement.

The Courts in England and Wales can be arbitrary in divorce settlements and are unlikely to have sympathy for a couple who try to rely on a makeshift agreement and where neither party has had the foresight to obtain proper legal advice.

Each person’s situation is different and a pre-nuptial agreement needs to be fully and carefully considered.

The actual agreement should be drawn up properly by a qualified family lawyer and be tailored to your individual requirements.

How to bring up the subject?

It can be extremely difficult to bring up the subject of a prenuptial agreement with your intended. Pre-nuptial agreements can be seen to be self serving and can cast a shadow over what is otherwise a happy occasion.

Some advice as to how to raise the issue:-

Things to avoid

Some conversation starters

If you do require any further advice with regard to prenuptial agreements then please contact Rachel Buckley at the Family Law Company on 01392 457 155 or email [email protected]

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