Prenuptial agreements

In spite of the courts recently showing a willingness to take prenuptial agreements into account on divorce where certain conditions have been met, prenuptial agreements are still not binding under English law. It may seem somewhat perverse for couples who are about to embark upon a marriage to focus upon what should happen should the marriage fail. Such parties are becoming more concerned about what will amount to potentially expensive and unpleasant divorce proceedings. Some parties may already have been through a divorce from a previous relationship and may wish to try to achieve some greater control over the outcome of any subsequent divorce proceedings.

A prenuptial agreement would set out what you and your future spouse or civil partner have agreed should occur in relation to your individual finances should the marriage break down and you each go your separate ways.

If a prenuptial agreement is going to stand any real chance of being implemented by the courts, certain criteria would have to be satisfied.

a) Both parties to the agreement should have sought and received independent legal advice from separate solicitors.

b) There must be full and frank disclosure of each party’s financial position. It is quite common for a summary of all the appropriate financial details to be annexed to any prenuptial agreement so there can be no doubt as to what matters have been taken into account prior to coming to an agreement.

c) Neither party should have entered into the agreement under duress by any party prior to entering into the agreement. The agreement should also be signed at least 28 days prior to any marriage or civil partnership ceremony.

d) Overall the agreement has to be considered to be realistic and fair. If it shows a clear indication that in the event the net effect of the agreement is that it is too far to the advantage of one person then it is unlikely that the courts would uphold it within any divorce proceedings. During any subsequent divorce proceedings, it is entirely a matter for the discretion of the courts as to whether or not they take such agreements into account. In the event of a short marriage or where the circumstances of either party have not altered very much since the agreement was drawn up, that agreement may well be considered as a starting point for any subsequent negotiations.

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