We are being asked by our clients more and more frequently about the potential need for a pre-nuptial agreement. While some couples may find it difficult or awkward to approach the subject of a pre-nuptial agreement with their future spouse, a day will come in the not too distant future when it will be considered usual if not essential to discuss the need for a pre-nuptial agreement before the big day.
As couples enter into marriage later in life they have often acquired substantial assets in their own right prior to meeting their partner and understandably they don’t necessarily consider that these assets should automatically become matrimonial assets on marriage. Protecting those assets as far as possible is therefore a sensible step to take before they commit to marriage.
While it is hoped that the pre-nuptial agreement is not going to be needed it will give added peace of mind that if things don’t work out you are not left exposed to a claim over all your assets. It gives both parties a realistic expectation of how assets would be dealt with on any subsequent separation and most importantly it should avoid costly litigation in any subsequent divorce proceedings, as the division of assets should be in line with what was agreed in the pre-nuptial agreement.
The agreement we draft will be bespoke, taking account of your individual circumstances.
The present legal position is that if your pre-nuptial agreement fulfils the relevant legal criteria;
- it was entered into at least 21 days before the date of the wedding;
- the parties made full financial disclosure of their individual financial positions prior to entering into the agreement;
- the parties both had independent legal advice;
- and of upmost importance the agreement is considered in all the circumstances to be fair,
then it is likely that on subsequent consideration by the divorce court that agreement stands a very good chance of being upheld.
Subsequent changes to personal circumstances could render an agreement ineffective and accordingly we would advise that an agreement is reviewed at regular intervals to ensure that it is still relevant and would pass the fairness test.
An agreement entered into after marriage is called a post-nuptial agreement and can also be equally effective in protecting assets.
If you consider that either a pre-nuptial or post-nuptial agreement may be of interest to you then please contact Tracy Lambert in the family team.