A “pre-nup” is an agreement which a couple may choose to enter into before they get married. It sets out, in a formal document, what will happen to your assets should the marriage breakdown.
A Pre-Nuptial Agreement is particularly important in circumstances where one person enters into the marriage with more assets or wealth than the other e.g. inheritance or money from a previous divorce settlement.
A Post-Nuptial Agreement is exactly the same, but entered into after the marriage.
Are ‘Pre-nups’ binding?
It is important to consider that ‘Pre-nups’ aren’t necessarily binding. The Courts do not always uphold a pre-nup even in circumstances where both parties had the benefit of legal advice at the time the agreement was entered into.
A Pre-nuptial Agreement is only one of the factors a Judge must take into consideration when a marriage breaks down. The Supreme Court upheld a pre-nup in the landmark case of Radmacher v Granatino. This was ground breaking stuff for lawyers.
The general rule is that a Court should give effect to an agreement freely entered into by the parties unless in the circumstances it would not be fair to hold the parties to their agreement.
The Court will then also consider the issue of fairness. One factor that the Court must give consideration to is the children of the family and whether or not a Nuptial Agreement would prejudice the reasonable requirements of the children if it is upheld. The Court will also need to take into account the changing circumstances of the parties since the agreement was entered into.
How do you make sure the Court uphold the agreement?
Whilst there is no guarantee that a Court will uphold the agreement there are certain aspects that are essential such as:
Independent Legal Advice
Each party needs to obtain independent legal advice. This shows that you both understand the purpose of what you have signed and the implications.
Full Financial Disclosure
It is important that both of you have the necessary information to make an informed decision. Full details of your assets and income provided to your partner shows that you were both fully aware of the financial implications of the pre-nup. It is important to show that both of you intend that the agreement should govern the financial consequences of your marriage coming to an end. However, even where one person does not insist upon full disclosure the weight given to the agreement may not be reduced by the Court simply because there was not full disclosure.
Avoid allegations that you forced your partner into entering into it.
Courts do not usually get involved with child maintenance as it is dealt with through the Child Support Agency (CSA). If you have a query regarding CSA then their website is the best place to start. If you are not married, the courts cannot order any form of maintenance, lump sum or pension share for you.
The pre-nup must be entered into freely by both of you and there should be no evidence of duress or undue pressure before entering into the agreement. A safeguard against allegations of emotional pressure is that pre-nup should be entered into long before the marriage actually takes place.
Ensure the Agreement is Fair
There is less chance of the Court upholding the pre-nup if it is clearly weighted in favour of one person. Often the reason for the pre-nup is to give a more favourable financial settlement for one of you, however, it is still important to ensure that the agreement is realistic in light of current law. The Court is unlikely to uphold an agreement that would result in one of you being left homeless and poor whilst the other enjoys a lavish lifestyle.
Provide For Future Changes
Pre-nups should really only last until the birth of the first child of the family or for up to a period of five years. The longer the marriage the more likely that reduced weight will be given to the pre-nup. It is possible to review an agreement by way of a post nuptial agreement after being married for several years.
Pre-nups are extremely important and technical documents. It is essential that you use a Solicitor to prepare or approve any agreement to ensure that it is as binding as possible. As solicitors dealing with all family law aspects in Sheffield, Rotherham, Doncaster and throughout South Yorkshire, we can help.