Pre-Nuptial Agreements
A significant percentage (currently around 50%) of marriages now end in divorce. It is therefore natural that mature adults might wish to agree what should happen in the event of a breakdown of the relationship. Prenuptial agreements can provide certainty and the means of protecting pre-marriage assets, inheritance, and existing family commitments such as children from a previous marriage.
A pre-nuptial agreement is a document in which a couple set out their rights in relation to any property, debts, income and other assets purchased together or acquired individually (eg, through inheritance), or that they have bought into a relationship.
Legally, once married all of these assets become matrimonial assets and, unless specifically protected, are thrown into a single financial pot. The primary purpose of a “pre-nup” will frequently be to limit the potential claims on the wealth of one of the parties to the marriage.
How to get a pre-nuptial agreement
Independent legal advice must be sought by both parties in order to protect the other party against the allegation of undue pressure to sign any such agreement. This is taken into account by the courts should an agreement need to be called upon, so it’s important to get it right up front.
Pre-nuptial agreements cannot take away the discretionary powers of the court in deciding what is fair, but a well-drafted agreement will be of significant value in any decision made.
The agreement can include details about property, payment of the mortgage, outgoings, ownership of contents, liability for credit and ownership of bank accounts.
It will need to be precise, detailed and enforceable. The parties may be advised in relation to a Deed of Trust being drafted which sets out the ownership and respective beneficial interests in the home.
Prenuptial agreements are flexible and can be written to take account of changes in circumstances, in particular the birth of a child, and longevity of the relationship.
The validity of prenuptial agreements in the UK was significantly strengthened in 2004 when the courts upheld a prenuptial agreement and a wife lost a substantial claim. The courts now take them seriously, but will carefully consider things like:
- Did the party with the most to lose understand the nature of the prenuptial agreement?
- Did he/she have independent legal advice?
- Was he/she under pressure to sign?
- Was there full financial disclosure?
- Would an injustice be done if the prenuptial agreement were upheld?
A lawyer must be called upon to draw up any such agreement. You can arrange a fixed fee pre-nuptial agreement here.
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