A pre-nuptial agreement is a legal agreement entered into prior to a marriage or civil partnership. The agreement will detail who owns what at the time of marriage and also how the couple intend that those assets should be divided in the event of divorce or separation.
Technically speaking these types of agreement are not legally binding in this country; however, following the recent landmark Supreme Court case of Radmacher v Granatino, the Court will now give great weight to these agreements and uphold the terms agreed except in rare cases. Such cases might be where either the agreement was not entered into freely by either party, that either party did not have a full understanding of the implications of the agreement at the time of signing it or if it would be essentially unfair to uphold the agreement. These agreements cannot override the Matrimonial Causes Act 1973.
If you are considering entering into a pre-nuptial or post-nuptial agreement the you should take the following steps to ensure the best chance of it being upheld at some point in the future:
Obtain independent legal advice. A specialist family solicitor should be instructed to ensure the agreement is correctly drafted and that you fully understand both the terms of the agreement and the implications of it. You cannot both obtain advice from the same solicitor and must instruct solicitors separately.
Provide full and frank financial disclosure. An accurate schedule of the assets and income of both parties should be attached to the agreement as evidence of the fact that both parties were fully aware of the financial implications of the agreement. Documents to support the figures detailed in the schedule should also be provided.
Do not delay. You must avoid any allegations of duress or undue influence where possible and with this in mind a pre-nuptial agreement should be entered into as early as possible before the marriage ceremony. Agreements should be entered into at least 28 days before the marriage if possible.
Ensure the agreement is fair. If the agreement is esentially unfair as it is weighted too far in favour of one person, there is less chance of it being upheld. The court is unlikely to uphold an agreement that would result in one person being left unable to meet their financial needs, especially where children are involved.
Review the agreement. Pre-nuptial and post-nuptial agreements should only last until the birth of the first child of the family or for up to a period of five years. A provision for review by way of a further post nuptial agreement after being married for several years should be included in the agreement.
For more detailed advice from a specialist family solicitor please contact us on 02380 713060 for a free initial consultation.
For specialist advice in all areas of Family Law and Wills & Probate please contact us on 02380 713 060 for a free consultation.