Pre-nuptial agreements are increasingly important for many couples, and it’s not just the very wealthy who enter into them. A prenup can, for example, be valuable for clients in blended families to protect pre-marital assets and to minimise the risk of potential disputes.
Great care must be taken when negotiating the terms of what are ultimately intended to be legally binding nuptial agreements.
Specialist legal advice from experienced family solicitors is the best way to ensure your short and longer-term interests are property protected.
Pre-Nuptial Agreements are not binding and cannot override the jurisdiction of the divorce court.
However, an agreement is a relevant fact to be taken into account by the court on an application for financial remedy in divorce and if the agreement passes certain tests it is likely to be upheld and even if it is not upheld may significantly alter the final financial settlement.
The court will want to ensure that there was a marital agreement between the parties and they intended a divorce court to give effect to their agreement.
The test is one of fairness and is in 2 parts:-
- Did the parties enter into the agreement voluntarily, without undue pressure, and were they informed of its implications? In other words, was it fair in the first place.
- To pass the first part of the test there should be mutual full and frank financial disclosure of all assets and both parties should have received independent legal advice. There should be a reasonable amount of time between the agreement and the wedding (at least 21 days)
- Do subsequent circumstances make it unfair or unjust to hold the parties to the original agreement? So the second part of the test looks at whether or not the agreement remains fair.
- For example, circumstances which could change during the marriage leading to injustice, such as one party suffering serious illness or disability, that may render the agreement unfair.
The courts have been, in recent years, increasingly willing to uphold nuptial agreements but they will not do so if it would be unfair or inequitable in the particular circumstances and there are several reasons why a judge may reject a nuptial agreement. To ensure that your nuptial agreement remains valid it is always important to have a review clause. This clause allows the parties to review the agreement on the happening of a significant life event and makes sure it remains relevant and continues to reflect the parties’ circumstances and needs.
Pre-Nuptial agreements are about the autonomy of the parties to determine for themselves what should be the fair outcome in the event that their marriage fails.
How we can help
For expert advice on prenuptial and postnuptial agreements, and financial matters on divorce, contact Gurdip Kaur Brring on 01905 610410 or email gurdip.brring@mfgsolicitors.com.