A prenuptial agreement provides a clear agreement that can lead to peace of mind for both parties.
They can give you peace of mind if:
You want to protect inheritance or future inheritance, both money and assets
There are assets and/or property that would be very hard to split 50/50
You have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights. (It is also crucial to make a will)
Either party own a business which they’d like to retain control of
If your spouse has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable
Are Prenuptial agreements legally binding?
It is important to note that prenuptial agreements are still not legally enforceable in England and Wales – at least for now.
However following the landmark decision in the case of Radmacher v Granatino in October 2010, judges are attaching more weight to prenuptial agreements and are more likely to uphold them, unless they are considered to be unfair at the time the parties get a divorce.
In our experience, a prenuptial agreement is more likely to be upheld if it is signed at least 21 days before the wedding day, its contents are reasonable, clearly not out of date (providing for future children, for example, and preferably a review after a period of time) and if it was properly drafted by a family lawyer with both parties receiving independent legal advice and providing full financial disclosure.
How do I create prenuptial agreement?
When considering if the prenuptial agreement is fair and should be upheld, the court will look at things such as whether both parties understood it properly and if they had enough time to review it before signing. Therefore when a prenuptial agreement is created you need to ensure the following:
To comply with UK law, the pre-nup must be drawn up by a qualified solicitor
Both parties must have separate solicitors to avoid any claim of conflict of interest
All assets must be fully disclosed by both parties
Both parties must fully understand the agreement
Both parties must voluntarily agree to it
Both solicitors must confirm it was entered into freely and knowingly
The prenuptial agreement should be signed at least 21 days before the marriage
I’m getting divorced and there is a prenup in place
When we advise a client about a relationship that has broken down and a prenuptial agreement is in place, we ask certain questions. These include:
How soon before the wedding was the prenuptial agreement signed?
Was any pressure placed on the parties to sign it?
How was it negotiated?
Was there any negotiation at all, or was the agreement imposed on one party?
Was there full and frank disclosure of the finances of both parties?
Did both parties receive legal advice?
Depending on the answers to the above questions, we can then give you advice about how your existing prenup could affect your separation.
If you are considering a prenuptial agreement, or you have signed a prenuptial agreement and would like advice, book an appointment today in one of our UK offices.
We're already married but want to sign an agreement
If you are already married and want an agreement in place to define what will happen in the event of the marriage ending, then we advise visiting our page on postnuptial agreements. A postnuptial agreement (or postnup) can effectively do the same things as a prenup, except postnups are signed after marriage has occured.
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