A pre-nuptial agreement (also known as a pre-nuptial contract) is an agreement made by a couple before marriage as to how their property and assets should be split should they divorce.
A pre-nuptial agreement is not legally binding in England and Wales. However, recent case law has established that the Court will now attach considerable weight to these agreements and hold the parties to the terms agreed unless it can be proved that:
each party did not enter into the agreement freely
one or both parties did not have a full appreciation of the terms of the agreement when they entered into it
it would be unfair to hold either party to the agreement.
It is strongly recommended that each party to the agreement obtains independent legal advice from a family lawyer before signing the agreement. This will help show that you both understood the implications of the agreement when entering into it. You should also take the following steps before entering into such an agreement:
ensure the agreement is realistic and fair – if the agreement is weighted too far in favour of one person, there is less chance of it being upheld by the Court later on. Whilst the reasoning behind signing such an agreement often includes securing a more favourable settlement for one of you, it is important that it does not go too far. If the dedication of one of you to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold you to an agreement that entitles the latter to retain all that she or he has earned.
avoid allegations of duress or undue influence – if the Court finds later on that the agreement was entered into under duress or undue influence then it is unlikely to uphold the agreement. A common safeguard is that the pre-nuptial agreement is entered into at least 21 days before marriage to avoid allegations of emotional pressure.
full and frank disclosure – full disclosure of your assets and income to your partner helps to show that you were both fully aware of the financial implications of the agreement. It is important that both of you have all the information which is material to your decision and that both of you intend that the agreement should govern the financial consequences of your marriage coming to an end. However, it should be noted that even where one person is indifferent to the particular details of the other’s assets and does not therefore insist upon full disclosure, the agreement may not be given reduced weight by the Court because there was not full disclosure.
provide for future changes – it is recommended that pre-nuptial and post-nuptial agreements should only last until the birth of the first child of the family or for up to 5 years. It is possible to review an agreement by way of a further post-nuptial agreement after several years.
Our Family Law department is based in our High Wycombe office and most of our clients come from the Thames Valley area from towns such as Beaconsfield, Amersham, Chesham, Slough, Reading, Thame, Great Missenden and Marlow.
Our approach to costs is open and frank. Our charges are calculated on the basis of the time we spend working on your matter. The hourly rates for the different levels of experience of our team members are competitive. Family problems and relationship breakdown can be stressful enough without the additional worry of meeting legal fees and we are often able to agree litigation funding arrangements to suit your particular needs and circumstances.
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