What is a pre-nup and is it enforceable?
When marriages end, a major source of stress for many couples is not knowing at the outset what the financial outcome of their divorce will be. As many people are tending to marry later or get married for the second time, they enter into a marriage with assets they may wish to protect should the relationship fail. One possible solution is for couples to enter into a pre- nuptial agreement.
A pre-nuptial agreement is a legal agreement entered into by two individuals ahead of their marriage. The agreement will usually set out how the couple wish their assets and income to be divided should they later separate or divorce.
People may especially wish to consider a pre- nuptial agreement in the following types of cases:-
- If you wish to protect your business interests or inherited assets owned before the marriage;
- If you would like to be clear about what the financial arrangements will be in the event of a divorce;
- If you wish to provide for a child born to a party other than the person you intend to marry
Pre -nuptial agreements are not automatically enforceable in England and Wales. If there is a dispute over financial arrangements following a divorce the court has the power to override the terms of any pre-nuptial agreement.
However, following the case of Radmacher v Granatino (2010), provided certain criteria are met it is likely that the agreement will be upheld by the court. The court have said that as long as the agreement has been entered into freely by both parties with an understanding as to the implications, the court should give effect to its terms unless to do so would not be fair.
In order to ensure your pre-nuptial agreement has the best prospect of being upheld by the court on a subsequent divorce, the following points should be considered:-
- The terms of the agreement must be reasonable and not leave either party or any children in a position of hardship;
- Proper provision for all parties must be included in the agreement;
- Both parties must have entered into the agreement of their own free will and not under any form of duress;
- Ideally, both parties have taken independent legal advice about the terms and consequences of the agreement;
- Both parties to have given full and frank disclosure of their financial position;
- The agreement should be signed in good time before the wedding and certainly not less than 21 days before the marriage.
If you wish to discuss this aspect of family law in more detail do not hesitate to get in touch with our family solicitors at www.rjtsolicitors.co.uk or 01257 228027. We offer a free 30 minute consultation.. what have you got to lose
