Thinking of popping the question this Christmas? Or might Santa bring you a ring this year?
A pre-nuptial agreement to preserve your assets is not the sole prerogative of the rich and famous. These are becoming more recognised by the courts in England and Wales and we recommend you complete one to help protect your assets.
In recent years, English courts have given weight to pre-nuptial agreements in a number of cases, treating them as significant. This trend is only likely to increase. A relatively recent case of the Supreme Court, Radmacher ‘v’ Granatino, has reinforced this view. In that case, the Supreme Court largely upheld the pre-nuptial agreement entered into by the couple. However, for it to be the position in all cases, Parliament would need to bring in new legislation.
That said, more people are making pre-nuptial agreements. For such agreements to have the best chance of being upheld by the court, if subsequently challenged upon divorce, the following points should be considered:
- it is very important that neither party should feel that they have been pressurised into entering an agreement. Both must do it voluntarily and of their own free will
- both parties to an agreement need to be separately and independently advised by a solicitor
- both must disclose to the other their assets and liabilities and financial circumstances generally. This disclosure will normally be appended to the agreement. It is important to be full, frank and honest. The disclosure does not, however, need to be very detailed.
- it should be entered into sometime before the marriage takes place. Many people say at least six weeks before the wedding is the minimum. Most agree that less than three weeks would be insufficient. So it is important to act sooner rather than later!
- it should be fair otherwise it is unlikely to be upheld. To be fair, recognition will have to be given to changing the agreement as time goes by. What constitutes a fair division after a short marriage will not necessarily be fair after a marriage of many years.
To read our festive legal article in full (’12 Lawful Days of Christmas’) please click here.