Pre Nuptial Agreements– what are they?
A Pre Nuptial Agreement (or Premarital Agreement) is a written contract setting out plans for division of a couple’s property should they divorce. Pre Nuptial Agreements are usually made when one partner, perhaps wealthy through a career or inheritance, stands to lose more from a divorce than their partner. Pre nuptial agreements are made before marriage takes place. Under English law, pre nuptial agreements are not currently legally binding in court. However, with 45% of marriages currently ending in divorce, a thoroughly prepared, clearly stated document can be persuasive evidence for a judge ruling on the splitting of assets on divorce.
In a divorce case, a court has full discretion, particularly over maintenance for and housing of children. Any judge will also consider whether full financial disclosure from both parties has taken place, and whether pressure was applied to sign a pre nuptial agreement. A court can choose to ignore a pre nuptial agreement, but an agreement, drawn up with the advice of a family lawyer, can act as an indication of a couple’s intentions on entering a marriage. Though not yet enforceable under English law, a pre nuptial agreement may prove invaluable in safeguarding assets obtained before marriage, once a case goes to court.
Who can sign a Pre Nuptial Agreement?
A UK Prenup Agreement is usually requested by someone wanting to protect assets that they have accumulated (perhaps through a successful career or inheritance) before entering marriage. Anyone favouring self determination on the financial issues of a divorce may also want a pre nuptial agreement. While a pre nuptial agreement may safeguard these assets, a contract will probably be ignored in the event of a substantial change in circumstances e.g. children or a serious change in one partner’s health. Where children are concerned, their needs and those of the parent looking after them are considered paramount.
In short lived marriages, perhaps with divorce sought after a few months, the terms of a pre nuptial agreement are more likely to match those at the time of a divorce. With longer marriages, courts are unlikely to take much notice of a prenup agreement made, say, 20 years previously. A Prenup Agreement may try to predict a couple’s likely financial situation, but the circumstances of a long marriage are difficult to predict.
Who needs a Pre Nuptial Agreement?
As divorce rates rise, and many couples delay marriage until later in life, a pre nuptial agreement can be useful in deciding how to divide matrimonial assets. Many types of people may wish to consider pre nuptial agreements, including business people with substantial assets and the older generations, perhaps marrying in their fifties for a second time, who want to safeguard assets for children of a first marriage. A pre nuptial agreement may also protect against “gold digging” from partners in a divorce.
How do we get a Pre Nuptial Agreement?
With UK Prenup Agreements yes not yet legally binding , couples can draft their own agreements, without the help of a solicitor. A “DIY” agreement, however, is not advised by legal professionals. Such DIY pre nuptial contracts should be scrutinised by a solicitor to fully inform a party of the circumstances of the agreement. A badly drawn up, ill considered pre nuptial agreement can be costly, both in financial terms and the time and stress involved in a protracted divorce . Some cases have ended with a party surrendering over half their assets to a former partner, and even paying 50% or more of future earnings to their ex spouse.
Prenup Agreements should not be signed less than 21 days before marriage, as this may be considered by a Court to have been signed under pressure.
Can we get a Pre Nuptial Agreement after we are married?
As the title suggests, a Pre Nuptial Contract is drawn up before marriage. If a pre nuptial agreement is to be taken into consideration by a court, our lawyers advise that a contract is written and signed before marriage takes place. However, post nuptial agreements have taken place, but there is a key difference with its pre nuptial counterpart.
A pre nuptial agreement may state a financial settlement to be given to one partner in the event of divorce, or set out terms and condition of a marriage, whereas a post nuptial agreement is entered into after a wedding. Since December 2008, post nuptial agreements have been considered legally binding, though couples are warned not to write them as a template separation agreement in marriage. Any attempt at a ‘cheap pay off’ of a partner during marriage to avoid proper financial settlement is likely to incur the wrath of a judge ruling on a divorce settlement.
Does my partner need independent legal advice?
A pre nuptial agreement is usually requested by one party in a relationship, to protect assets they have gathered before an impending marriage. Therefore, a partner should seek independent legal advice, preferably from a lawyer experienced in preparing pre nuptial agreements, with both parties then jointly agreeing on a draft pre nuptial agreement. Specialist family law lawyers are best placed to advise on pre nuptial agreements, and the terms offered to one party by another.
Are Pre Nuptial Agreements enforceable in the UK?
Pre Nuptial Agreements are not currently enforceable under English law. Courts reject any attempt to block one spouse seeking financial relief from the other through legal proceedings. However, a pre nuptial agreement can be considered as a ‘guideline’ to the intentions of a couple upon entering marriage. Circumstances including the birth of children during marriage will almost certainly overrule any pre nuptial agreement.
Some other countries treat pre nuptial contracts as legally binding, and many UK judges wish to see English law brought into line with that of many other countries, particularly those in Europe. In considering to what extent any pre nuptial agreement should be taken into account, the Courts are likely to consider whether both parties understood the agreement, did they both have independent legal advice, was there full financial disclosure and was there any pressure on either party to sign.
Do I need a lawyer to prepare a Pre-Nuptial Agreement?
As Pre Nuptial Agreements are non binding under English law, a couple needn’t contact a lawyer in order to draft an agreement. However, our specialist pre nuptial lawyers strongly advise against contracts drawn up without legal guidance, as poorly constructed or badly prepared pre nuptial documentation can result in further turbulence in a divorce case.
In 2004, former England international footballer Ray Parlour, who did not make a pre nuptial agreement with his ex partner, was ordered to pay a third of his future earnings to his former spouse, amounting to many thousands of pounds. Though an exceptional case due to the substantial wealth involved, the Parlour settlement brought Pre Nuptial Agreements into the spotlight. We strongly advise that a lawyer should thoroughly examine any agreement , and explain terms and conditions to a party so they are fully understood.
Can we change a Pre Nuptial Agreement?
If both parties signing a Pre Nuptial Agreement wish to change the contract, this can be done. Once again, a lawyer is best consulted to examine any changes and carry out any necessary redrafting of documentation.
Do Pre Nuptial Agreements apply to a civil partnership?
Since the recognition of gay and lesbian partnerships under the 2004 Civil Partnership Act, many thousands of same sex couples have officially registered their relationships, giving them the same rights as married couples. Pre nuptial agreements can be drawn up by a same sex couple who wish to make a contract for the same reason as those in heterosexual relationships. If a civil partnership is dissolved, the agreement is, again, unenforceable under English law, but may be considered in any settlement ruling.
Can Pre Nuptial Agreements agreed in the UK be used abroad?
Many countries, including France and Germany, legally recognise pre nuptial agreements. Therefore, many UK solicitors can draw up a pre nuptial agreement for international clients, whom may live in jurisdictions where such contracts are binding. Clients with personal and business interests in the UK may also seek a pre nuptial agreement to be drawn up, with the expectation that it would be dealt with in the UK.
Will Pre Nuptial Agreements be recognised by English courts in the future?
In recent cases, the English court has described the current position of regarding pre nuptial agreements as completely unenforceable as one which is both “unrealistic” and “reflects the laws and morals of earlier generations”. These cases could hail a future change for the development of UK prenuptial law and prenuptial agreements .
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