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Do you believe in fairytales?

View profile for Mike Devlin
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As a child I am sure you were told of the story of the princess locked in the castle being rescued by her prince in shining armour. The white wedding followed and they lived happily ever after or did they?

 

One of the most recent marital breakdowns has been that of Cheryl and Ashley Cole. Cheryl’s famous last words have been quoted time and time again in the national Press…

 

“We’re a work in progress, we’re going to build our married life together not thinking about if it ever ends”

It appears that Cheryl and Ashley are about to enter a nasty divorce battle full of bitterness. Could that have been avoided if they had a prenuptial agreement?

 

Several high profile cases have come before the courts in recent years. The position still remains that the courts jurisdiction cannot be ousted but it is of course a factor to be taken into account when a court makes a decision. In the case of Crossley v Crossley in 2008 the Court of Appeal described the existence of such an agreement as a factor of “magnetic importance” The most recent case is that of Radmacher V Granatino in 2009 when once again some important factors emerged. It was said that such agreements are likely to be given substantial weight.

 

It seems that in the future prenuptial agreements may become binding and at the very least will be taken into consideration. It is of course essential that one follows the guidelines that have been suggested such as both parties having the benefit of legal advice, the agreement to be signed some time in advance of the wedding, both parties providing frank disclosure of their financial circumstances, neither party to be under pressure or be financially dominant and provision for review.

 

An earlier case of Macleod v Macleod in 2008 considered the issue of pre-nuptial agreements but this case is interesting because it looked at post-nuptial agreements which are rarely considered by couples but once again if properly entered into could save a lot of anguish for warring couples. In this case the parties had made a pre-nuptial agreement in 1994 and following a volatile marriage in which they split up at least seven times Mr Macleod sued for divorce on the grounds of his wife’s adultery in 2003. The court upheld the post nuptial agreement that had been entered into by the parties in 2002, which confirmed the 1994 pre-nuptial agreement but made some variations to it.

 

In many of these cases, had they considered a prenuptial agreement which could have been reviewed and converted into a post nuptial agreement, bitterness could have been avoided and money could have been saved. Steps could have been taken to merely put into effect the terms that the parties had agreed with the benefit of sound legal advice.

 

By family solicitor, Gillian Davies

 

 

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