Many couples will have happily tied the knot over the summer. Unfortunately, not all marriages come with a happy ending.
There is a stigma around family lawyers that intimates we only deal with messy divorces and heated court battles that are expensive for the couple separating. Whilst The Family Law Company does indeed deal with divorce, albeit in a non-confrontational way as far as possible, we also assist couples with pre-nuptial agreements. A ‘pre-nup’ can help avoid unpleasantness or costly proceedings should the marriage break down irrevocably.
Although it may be a difficult topic to discuss with someone you love, I tend to consider these agreements the same way I do insurance policies. Many of us pay into these each month in case of redundancy, accident or death and while no one really wants to think about those possibilities, we have the policy to ensure financial protection for ourselves and our loved ones.
What is a prenuptial agreement?
- It’s a formal, written agreement between couples in contemplation of their marriage; a contract that can protect certain assets and set out how things can be divided in the event of a breakdown of a marriage.
- A pre-nup is not just for the rich and famous; the contract is tailored to each couple and their individual needs.
- They are particularly popular with people entering their second or third marriage who want to protect what they have already prior to entering into the marriage – especially if there are children from the first marriage to provide for.
Are prenuptial agreements enforceable?
Although if there is a dispute they are not legally binding, following the ground-breaking case of Radmacher v Granatino, courts in England and Wales now take such an agreement seriously, unless it is considered unfair.
When deciding whether to uphold a prenuptial agreement, a Judge will consider:
- Whether each party to the agreement received independent legal advice
- If there was full and frank disclosure of both party’s assets and liabilities
- When the prenuptial agreement was signed (they generally cannot be entered into less than 21 days before the wedding)
- If pressure or duress was used to make one party sign
- If the agreement is fair and realistic in its division of assets
- Whether there are any children involved and if the prenuptial agreement taken their needs into consideration.
Can pre-nuptial agreements be updated during the course of the marriage, if circumstances change?
If new circumstances make the original terms of the agreement unfair or unreasonable then it can be updated providing both parties agree. For example, if the couple have a child and one parent decides to stay at home to raise the child, thus limiting their future earning potential.
It is advisable to deal with such situations as they arise, otherwise it is less likely the original agreement will be upheld by the courts.
If you would like to discuss pre-nuptial agreements with us, please get in contact. Your first appointment is always free.