Do I need a prenuptial agreement?
A common misconception is that a prenuptial agreement is only for the extraordinarily wealthy or celebrities, however they can be useful for any married couple who have financial assets. Whatever your assets or their value you have a right to protect them. Would you purchase a property without house insurance?
There are certain situations where you may be strongly advised to enter into an agreement, for example where there are substantial assets, if you have been previously married and own your own property which you may wish to protect for your children in the future, if you are marrying and are financially independent, if there are international elements to the marriage or if one party as substantial debts.
Are prenuptial agreements binding?
Prenuptial agreements are not presently binding under English law but recent case law indicates that this could be set to change in the future. Now, more than ever, prenuptial agreements are having weight attached to them and proving influential in the court room.
The most important case in recent times with respect to prenuptial agreements is that of Katrin Radmacher and Nicolas Granatino (20/07/09), in which precedent was set that such agreements are to be afforded significant evidential weight unless they are considered to be unfair. One of the Judges hearing the case stated that failure to recognise prenuptial agreements “does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement in an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace”.
Without a prenuptial agreement the starting point for the division of property and assets will generally be equality of assets between both parties. While this generally maybe the fairest distribution of assets they may be reasons why this may seem unjust in a particular situation and hence a prenuptial agreement could be crucial for you.
Prenuptial agreement requirements
When considering if an agreement is fair and should be upheld, the court will look for certain conditions to be in place when the agreement was entered into. Below is a list of important requirements to ensure the agreement has the best chance of being upheld in a divorce Court:
- Both parties signed the agreement free from coercion and pressure
- There was full financial disclosure of the financial position on both parties
- Each party obtained independent legal advice
- Each party understood the nature of the agreement
- The agreement was signed in advance of the marriage with time for the parties to carefully consider the agreement, preferably no later than 28 days before a marriage, referred to as a 'cooling off' period
- Would it be an injustice if the prenuptial agreement were upheld?
At Stephensons we can assist you to prepare a prenuptial agreement specific to your needs and requirements so as to enable you to have the best possible chance of it being influential in the event that your relationship breaks down in the future. We do appreciate that it is not the most romantic step to take but it may certainly be one of the most sensible decisions you make.
We have a large team of experienced family specialists and can offer specific advice tailored around your unique circumstances.