Pre-nuptial agreements are becoming increasingly popular especially where people are bringing assets into a marriage be it a property or a business. A pre-nuptial agreement enables a couple to set out clearly what should happen to their assets if the marriage were to break down and can potentially avoid the uncertainty and expense of litigation further down the line. Given that the starting point for the division of assets on divorce is equality a pre-nuptial agreement would be strong evidence of your intentions that any pre-marital assets are not to be included in the matrimonial pot for division in the event of a separation.
A pre-nuptial agreement can be tailored to each couple’s individual circumstances and can cover what would happen to the family home, any other property, businesses, inheritance, savings, pensions and debts on marriage breakdown. The agreement can also set out the practical and financial arrangements for any children.
A pre-nuptial agreement enables a couple to set out clearly what should happen to their assets if the marriage were to break down and can potentially avoid the uncertainty and expense of litigation further down the line.
At the present time pre -nuptial agreements are not strictly legally binding under English law which means they will not automatically be upheld by a Court. Although in 2014, the Law Commission recommended the introduction of ‘qualifying nuptial agreements’ which would if implemented, enable couples to mutually agree how their assets should be divided if the marriage breaks down and would be legally binding as long as the needs of any children have been met. This recommendation was very much welcomed by family lawyers given the increasing popularity of these agreements.
Although pre-nuptial agreements are not currently legally binding in the UK, recent case law has shown that the Courts are increasingly willing to take them into account and will generally uphold them if the following factors are met:
- Both parties have taken independent legal advice on the agreement;
- Both parties have disclosed all relevant information about their finances including details of all assets, pensions, savings and income;
- The agreement is made at least 28 days before the wedding or civil partnership;
- The agreement is entered into voluntarily and freely;
- The agreement is fair and realistic and should have provisions for review during the marriage e.g. when children are born.
The agreement should be drawn up by a family law solicitor to ensure it complies with UK law and signed in front of a witness.
Posted on March 6, 2018