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:-
- Full and frank disclosure by each party to the other of their income, capital and pension provision;
- Each party be given and have the opportunity to obtain independent legal advice;
- The pre-nuptial agreement should be signed at least 6 weeks prior to the marriage;
- There must be no undue pressure or undue influence placed upon either party;
- Both parties should be in good health;
- 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:-
- Make it clear that any agreement is to protect you both and not just yourself. Explain that you in no way expect a divorce in the future. This is “just in case”, in the same way you do not expect a house fire or a car accident, but you take out insurance to protect you.
- Bring it up early on, before the engagement is possible.
- Ask what it is that your intended knows about pre-nuptial agreements, and answer any questions they might have. You can also make legal advice available to them.
- Make it clear that both of you should have an input when it comes to drawing up the agreement. Make it clear it is not about your intended ending up with nothing.
- Explain that you in no way expect a divorce, but you just want to be prepared and do the right thing.
- Explain that it helps to avoid potential future complications and thousands of pounds of legal costs.
- Explain that it can be a great way to learn more about each others expectations, dreams and hopes. In some ways it can heighten communication.
- Pick a calm, neutral spot where you both feel you can be open, at ease and unpressured. Ensure that you are in a place where you both feel physically and mentally comfortable.
- Be open, honest and direct. Present it as an ideal to be built on by you both.
Things to avoid
- Do not spring it on your intended.
- Do not present it as a done deal.
- Do not present it at the last moment.
- Do not be overbearing or threatening.
Some conversation starters
- “Let’s talk about our future and what we want. Let’s make sure that all out money issues are resolved and then we won’t have this hanging over us in the future”
- “One thing I have to consider before we marry is my parent’s business/money/inheritance. I need to be confident that the business/money/inheritance will remain in the family in the event that the unthinkable occurs.
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 Rachel.Buckley@thefamilylawco.com.