Q What is a Pre-Nuptial Agreement?
A Pre-Nuptial agreement is a document signed by you and your spouse before your marriage that describes the financial arrangements for you and for your children, should you decide to separate in the future.
Q Isn’t a Pre-Nuptial Agreement just for the very wealthy?
Not in today’s world. More and more couples are considering such agreements, particularly where one partner (or their family) has wealth they want to protect from future claims should the marriage break down, particularly in the early years.
Older couples marrying again with their own assets and dependents by previous relationships also want to ensure that they are able to pass on assets and income to their dependents. Pre-Nuptial Agreements are increasingly popular amongst this age group and this is one area where the courts are more likely to recognise this desire to protect assets and to uphold properly prepared Pre-Nuptial Agreements.
Q Is a Pre-Nuptial Agreement binding on us both?
At the moment, even if a married couple has entered into a Pre-Nuptial Agreement the law requires the courts to decide how their financial settlement should look on divorce. However, if an agreement is in place, it will influence the outcome ‒ provided it is reasonably fair to them both and their children. In some cases, the court will follow the agreement to the letter. For this to happen both must take independent advice. There must have been no pressure applied when the agreement was signed and they should each have been aware of the other’s financial situation at the time.
A Law Commission report in 2011/12 recommended that the law be changed to make Pre-Nuptial Agreements fully enforceable as contracts if they have are correctly set up. At present there is no indication as to when this change in the law might actually happen. If and when it does, the recommendation of the Commission is that any Qualifying Pre-Nuptial Agreement must:
- Ensure that both parties’ financial needs are met; and
- The children are provided for; and
- That both parties disclose full information about their financial situation; and
- Both parties each receive legal advice.
Q If we think a pre-nuptial agreement is right for us what should we do?
Act early. A Pre-Nuptial Agreement should be agreed and signed not less than three weeks before the wedding. We regularly receive initial enquiries close to the intended marriage. We always act quickly, but it doesn’t help you to enjoy your big day and it makes the agreement less likely to be enforceable in the unfortunate event of a separation.
Don’t forget that you need to allow enough time for each of you to see separate solicitors for advice about the agreement and for the solicitors to negotiate the detailed terms. Ideally, you should be approaching solicitors at least 3 months before the intended wedding. To speed up the process put your financial information together for your solicitor ‒ it will be listed in the agreement. Your partner will need to see this.
As family law specialists, The Family Law Company is able to produce a fair agreement that will withstand future scrutiny and the pain and expense of contested court proceedings, with fair provision made for you, your partner and children.
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