What are Marital Agreements?
As well as prenuptial agreements; postnuptial agreements, or separation agreements, are a form of marital agreement. I will post more about this sort of agreement at a later date.
Prenuptial agreements are agreements entered into before a couple get married. They have gained in popularity over the years, and are widely known. Many rich and famous couples are known or thought to have prenups, and it has therefore commonly been thought that these are agreements which are provided for by the law. It must be remembered that the divorce laws in the UK, and in England and Wales specifically, are different from those across the pond where the majority of the celebrities we hear about live.
Prenuptial agreements have been given increasing weight by the courts over recent years. They are therefore extremely worthwhile documents to have and you should not enter into one unless you intend to be bound by the contents. That said, the Courts do have the power to depart from the agreements in certain circumstances, and it follows that they are not automatically binding or beyond the reach of the Court. It is important that they are entered into without undue influence, pressure or duress by or on either party and that each party has had independent legal advice or, at the very least, been given the opportunity to take independent legal advice. I would therefore strongly suggest that anyone thinking of entering into a prenuptial agreement takes independent legal advice before signing it.
I have heard tales of people being presented with a prenup on the eve of the wedding, and it is due to the risk of the pressures of this that it is considered important for the agreement to be signed in good time prior to the marriage. There is no specific set time period, but at least three weeks would be advisable. If legal advice is not taken, or the agreement signed too close to the wedding, it may be considered that less or indeed no weight should be given to the agreement in the event of a later dispute.
Following recent well publicised cases such as Radmacher v Granatino, prenuptial agreements are increasingly likely to be upheld. In my experience, many couples entering into the agreements are entering into second marriages, where one or both have children from previous marriages whose interests they wish to protect, or where one party has amassed significant assets prior to the marriage. A major factor in considering the enforceability of a prenuptial agreement is the need for full and frank disclosure of all financial resources. Whilst prenuptial agreements have been upheld where there is incomplete disclosure, this is a grave risk. If there is inadequate financial disclosure, a court may decide in future that it is not fair to uphold the terms of the agreement and that less weight should be given to it.
If there are any major changes in circumstances the prenup should be reviewed and, in any event, it should be reviewed regularly. This can be as simple as you both sitting down together and signing a document to confirm that you wish to continue to be bound by the terms of the Agreement. Where children are born after entering into the agreement and no review made, or if they were not addressed in the agreement, it is more likely that the agreement will be overruled.
The courts are increasingly accepting that people wish to regulate their own financial affairs, which is the aim of a prenuptial agreement. However, in certain circumstances a court may depart from the agreement if it is considered insufficient provision has been made for one person and that it would be fair or just to do so. This can include where no arrangements have been made for maintenance or support. Many prenups are intended to prevent one spouse from making a claim against the other in the event that the marriage breaks down, and to enable each to retain the property that they brought into the relationship. Such agreements are, in my view, well worth having. However, you should bear in mind that prenuptial agreements are not iron-clad and that they are capable of challenge. To ensure the greatest possible weight is attributed to them it is advisable to make sure that they are expertly negotiated and drafted by an experienced family lawyer.
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