A prenuptial agreement is a document made prior to marriage setting out the couple’s intentions as to the ownership of assets, liabilities, incomes and inheritances (including those that are yet to be received) and how these will be divided in the event that the marriage breaks down.
It is important to appreciate that whilst an agreement cannot override the discretion of the court it will be a relevant factor for a judge to consider. A prenuptial agreement is clear evidence of what was intended and provided certain guidelines have been followed then judges should be reluctant to depart substantially from its’ terms.
Typical reasons for entering into a pre-nuptial agreement include: a) protecting assets which existed prior to the marriage; b) ring fencing inherited wealth; c) to provide certainty and avoid unnecessary conflict in the event of the marriage breaking down; and d) protecting specific assets, e.g. a business.
In order for the pre-nuptial agreement to be valid and enforceable certain conditions must be met. These include: 1) it being drafted and agreed well in advance of the wedding; 2) the couple having a clear understanding of the other’s financial position; and 3) the couple each having taken independent legal advice. Finally, it has also fundamentally got to be reasonable. An agreement that fails to make adequate provision for the spouse with whom a child lives and for example leaves them homeless whilst the other retains their wealth is likely to have less weight attached to it by a court.
Please contact me if you wish to discuss and consider whether entering into a pre-nuptial agreement would be right for you.
I offer a free initial 30 minute interview with all new clients to consider their options and identify the best way forwards for them and their family.