Protection before or after marriage
Pre and Post-nuptial Agreements are becoming increasingly popular in this country as more and more couples are alarmed by the potential cost, both financial and emotional, of getting divorced.
Couples may choose to set out in a document what will happen in the event that their marriage or civil partnership breaks down.
The most common reasons for having a prenuptial agreement are:
- Second marriages: when one or both parties want to preserve some element of their estate for their children from a previous marriage;
- Protection of inherited wealth or where there is a disparity in wealth;
- Small companies where there are shareholders agreements in place;
- Where there may be a debate as to which jurisdiction proceedings may be issued.
Parties essentially enter into prenuptial agreements and postnuptial agreements in order to provide the following:
- Clarification – as to how the parties’ financial affairs will be conducted during the marriage, this allows the couples to have transparency as to how the finances will operate during the marriage which without prior thought can often be an issue in a marriage.
- Certainty – because it allows a couple to formally agree how their assets should be divided if they later separate or divorce.
- Protection – to protect inherited assets or pre-marital wealth from financial claims of the other party if divorce and financial proceedings were to be issued. A nuptial agreement can limit the scope for uncertainty in the event of the future breakdown of the marriage.
Pre nuptial agreements are not recognised in this country by statute. This has led many to question their worth. However, a number of influential judges have been prepared to look carefully at the terms of prenuptial agreements when making their decisions about the division of assets on divorce. The recent decisions of MacLeod (2008), Radmacher (2010) and Crossley (2011) indicate circumstances in which prenuptial agreements will be upheld. These cases essentially create a three stage test of fairness where you have to be able to show that the agreement was freely entered into, the parties have a full appreciation of the implications of the agreement and it must be fair to hold the parties to the agreement. Crucially, these cases highlight the importance of obtaining legal advice to prepare a document that accurately reflects the parties’ wishes whilst at the same time producing an overall fair division.
Perhaps surprisingly, many couples find the process of negotiating the terms of an agreement to be a positive one, even if they were initially wary of raising the subject with their partner. Negotiating in the context of a forthcoming marriage or civil partnership is often easier than negotiating during the process of separation and relationship break down. Importantly, a couples’ view of what is “fair” prior to their marriage or civil partnership can be influential in financial settlement discussions if the relationship does break down.
Many couples do not realise that it is possible to enter into an agreement after they have married or entered into a civil partnership. Postnuptial or postmarital agreements are often used when parties wish to confirm and/or amend a premarital agreement to reflect a change in their circumstances and/or after a passage of time. Couples may wish to enter into a postnuptial agreement for a variety of reasons such as one of them receiving an inheritance during the marriage, the birth of a child, the start-up of a new company/business venture or to simply record their beneficial interests in the assets already owned by them. These agreements are increasingly found to carry weight when matrimonial assets are divided provided certain criteria can be met.
We can provide straightforward advice that will help you to identify whether a prenuptial agreement or a postnuptial agreement is appropriate for you and what terms should be included in that agreement. There are often time limits for the preparation and completion of premarital agreements and we are experienced in drafting the documents and concluding them in a prompt and straightforward manner.
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