A pre-nuptial agreement (or” pre-nup”) is a formal written agreement between the two partners drafted prior to marriage (or the equivalent for a civil partnership). Its purpose is to record what should happen, in the event of the breakdown of the marriage. The agreement needs to address the division of assets and clarify in detail how the assets are to be apportioned in the event of a divorce.
It may also outline post-divorce financial arrangements for children where there are children from previous relationships.
Whilst it may seem pessimistic to consider drafting a pre-nuptial agreement, it could save both time and hassle further down the line, if the relationship should unfortunately breakdown. As a specialist divorce lawyer, take the time to get to know each of my clients, their specific circumstances and most importantly, what they need from me.
In the event of a divorce, where there is no pre-nuptial agreement, the starting point for the division of property and assets will usually be an equal split of the assets between the parties. While this may be fair in many circumstances, this may sometimes seem unjust. For example, you might wish to protect inherited assets or money, a business, substantial savings, an expected future inheritance, or to preserve assets for children from a previous marriage.
Once you and your partner have agreed to put an agreement in place, you will need guidance through the process. No two “pre-nups” are the same, and the agreement will be bespoke and specific to you and your partner’s wishes.
A pre-nuptial agreement must be drawn up by a qualified solicitor. If the agreement is to be upheld, a court will consider whether the parties clearly understood what they were signing and had time to review it, with appropriate advice, before doing so.
To avoid a conflict of interest each party should have their own solicitor who will have to confirm that the agreement was entered into freely, without duress or coercion, and the parties understood its purpose and potential consequences. It needs to be signed at least 21 days before the marriage.
All assets and property must be fully disclosed by both parties to establish the baseline position as clearly this inventory will change over time.
The first time that pre-nuptial agreements were recognised as enforceable, under English divorce law, was in the key case of Radmacher v Granatino in 2010. Pre-nuptial agreements are now afforded considerable weight unless considered to be unfair. However, the courts retain discretion to waive the terms of any agreement, particularly if it is deemed to be unfair to any children of the marriage.
The law is developing in this area, and while pre-nuptial agreements are not 100% legally binding, in the event of a divorce and with specialist advice they can be of considerable persuasive effect. The more expertly drafted the document is the more the courts are likely to hold the parties to the terms of the agreement.
I offer a range of family law services including; divorce, fixed fee divorce, financial settlements, child law and related family law matters. To discuss your pre-nuptial agreement or to get expert family law advice on any financial arrangements during divorce, please complete our online contact form, or telephone 07917711887.