Pre-Nuptial Agreements

A couple planning to enter a marriage or civil partnership may decide to enter into an agreement that shows what they intend to happen to their money and property if the marriage or civil partnership were to end. This is called a pre-nuptial agreement.

A pre-nuptial agreement might be particularly beneficial where:

• one of you has substantially greater assets or income than the other

• one or both of you wishes to protect assets you owned prior to the marriage, including inheritances, businesses or family trusts

• one or both of you has children from a previous marriage or relationship and wishes to protect assets for the purposes of inheritance planning

In England and Wales pre-nuptial agreements are not strictly binding in the event of a later divorce, but the terms of a pre-nuptial agreement may be decisive in the event of a dispute dealt with by the court unless the effect of the agreement would be unfair. It is not possible in this country to have a fully binding agreement before marriage or civil partnership about what will happen on divorce or dissolution. In other countries, pre—nuptial agreements may be binding provided certain requirements are met.

To improve the prospect that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full (called financial disclosure), and take independent legal advice on the agreement and its effects. You will also need to enter into the agreement at least 21 days before the date of the ceremony, and not enter into the agreement as a result of pressure or duress from the other party.

It is common to build in provision for the agreement to be reviewed, either after a period of time has elapsed or when a specified ‘trigger’ event occurs, for example the birth of a child, or if either you or your spouse were to have health issues that impact on your earning capacity.

It is possible that the court might uphold part of an agreement while considering a different part to have an unfair effect.

Even though pre-nuptial agreements are not always binding, you should not enter into a pre-nuptial agreement unless you intend to be bound by the terms of that agreement.

We have prepared a useful factsheet on Pre-Nuptial Agreements. You can download the factsheet by clicking here.

If you would like further information about pre-nuptial agreements please contact us and we will be happy to assist you.

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