What is a pre-nuptial agreement?
A pre-nuptial agreement (colloquially referred to as a “pre-nup”) is an agreement entered into by a couples before marriage or starting a civil partnership that sets out what happens to their money, property and other assets if the marriage or civil partnership comes to an end.
Why do you need one?
If the relationship should break down then a pre-nup helps avoid expensive and stressful arguing over who gets what.
Is it legally binding?
As the current law stands, pre-nups are not legally binding, but do not let that put you off. In a recent decision of the Supreme Court, the Court said:
“The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
In short, a pre-nup is likely to be respected by the Court unless the effect of the agreement would be unfair to either party.
To do the best job of ensuring that the Court will not consider the agreement to be unfair the both parties need to disclose their financial circumstances in full and take independent legal advice on the proposed agreement.
Pre-nups that fail to be upheld by the Court are typically ones where the parties entering the agreement had no clue about their partner’s finances at the time; or the circumstances have dramatically changed since signing the pre-nup, or there is some suggestion of undue influence. It is therefore extremely important that if you are considering entering into such an agreement, you speak with a family solicitor first.
Can they be reviewed?
It is very sensible to add a clause into the pre-nup that allows for the agreement to be reviewed in the event that the parties have children together. A pre-nup cannot prejudice the interests of any children in your family.
Indeed, if the pre-nuptial agreement does not take into account the children of the family, the Court is unlikely to uphold the agreement in the event of divorce or civil partnership dissolution.
Signing the pre-nup in time
A pre-nup should be signed well in advance of any marriage or civil partnership. It is preferable that it is signed no later than 21 days before as otherwise there is more chance a Court will say one of the couple was pressurised into signing and not uphold the agreement.
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