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Pre-Nuptial & Post-Nuptial Agreements

Having the protection in place, just in case

Why do we need a pre-nup?

Pre-nups provide certainty in the unfortunate event of marriage breakdown. Divorce law jurisdiction in England and Wales is the most generous in the world. Unlike other European Countries there is no separation of property regime. It is therefore difficult to protect assets you may have already acquired without an agreement in place.

Pre- nuptial agreements can be used to protect business assets, monies already or monies which may be received in the future through inheritance. You may also have children and may not necessarily want your spouse to receive everything should your marriage break down.

Pre-nups are particularly useful for second or subsequent marriages.

Drafting an Agreement

A properly drafted pre-nuptial agreement can ensure that your intentions are clearly recorded in relation to those pre-acquired assets, and indeed any assets accrued during the marriage, so you can both enter the marriage knowing these pre-nuptial matters have been properly addressed.

As this is simply an Agreement between the two of you it is not immediately as binding and enforceable as a court order or commercial contract would be. If done properly however a pre-nuptial can be an extremely persuasive document and parties can be held to it’s terms.

The property you are seeking to protect is defined as separate property.

Seeking specialist legal advice for pre-nuptial agreements and post-nuptial agreements

The case law in this area is complex. It is, therefore, essential that a pre-nuptial agreement (or, indeed, a post-nuptial agreement, drawn up after marriage or a couple forming a civil partnership) is properly drafted with specialist legal advice.

There are certain key points which are important when entering into a pre-nuptial agreement and these are as follows:-

1. The agreement needs to be entered into no later than 28 days prior to marriage

2 . You each need to provide full financial disclosure so that you make an informed choice from the outset

3. The agreement needs to signed by the two of you and two independent solicitors.

4. The document needs to contain a provision for a review and it is important that the documentation is review on the happening of certain events. Typical events include the earlier of :-

  • The birth or adoption of a child of a family
  • Either of you becoming permanently incapable of work
  • 5 or 10 years times following the agreement being entered into

Specialist advice is needed so that you do not run the risk of an agreement being held as fundamentally unfair. It is important that provision is made at least on a sliding scale basis for the financially weaker party so that "needs" are met on divorce. Without a crystal ball it is difficult to predict future events. We can help advise you to protect assets to an extent which does not run the serious risk of rending the agreement as invalid or unfair.

The Courts in England and Wales are increasingly taking more account of pre- nuptial and post-nuptial agreements providing that the necessary safeguards are met.

In summary Pre-nuptial agreements are not a myth or a worthless exercise. They are a sensible and practical precaution against future relationship breakdown. They provide insurance and assurances to families and avoid future costly litigation.

To arrange a confidential appointment to discuss how you can best protect your assets please contact us at enquiries@clarkfamilylaw.co.uk or by phone on 01423 637272

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