Setting out the terms of a settlement in the event of a divorce or a dissolution, prior to a marriage/civil partnership, is becoming a more popular option for couples, particularly given that the court will now attach more weight to such an agreement than ever before.
In the event that you are getting married and wish to protect your premarital finances as far as possible or if you have been asked to enter into such an agreement please contact a member of our team who will be happy to help. A Prenuptial Agreement is a contract drawn up between a couple before they get married which details all of their property, debts, income and assets, that they own individually and together and detailing exactly how they will be distributed should they get divorced.
In many countries, Prenuptial Agreements are regularly enforced by the courts. In the UK Judges (who have the final say) are now viewing Prenuptial Agreements with increasing weight and recognition. It is important you understand that, if Judges consider that matrimonial law has been contravened, they have the last say in considering whether or not a Prenuptial Agreement should be binding. Consequently, it is important that the Prenuptial Agreement is of sufficient quality to pass the scrutiny of the judges. However, Prenuptial Agreements now carry so much weight that, providing certain factors have been met, then the court will allow the agreement to stand. These factors include (and are not limited to):
• Whether both parties took independent legal advice on what they were agreeing to
• Whether either party signed under duress
• Whether either party made full and frank disclosure of their assets, income, liabilities and pensions
• That the Prenuptial Agreement was entered into in a timely fashion
• That the Prenuptial Agreement itself is fair
The question of what is fair is entirely a question of fact, and is looked at by the court on a case by case basis. Even though there are no strict rules on what is fair and what is not, the wish to preserve what might be defined as “non-matrimonial property” (which can include property acquired by you independently of your partner and prior to the date of the marriage) is likely to be construed as a fair objective.
You will note from the above that it is important to ensure validity of the Prenuptial Agreement that your partner also obtains independent legal advice and that both of you disclose to one another through solicitors details of your financial affairs.