A couple who intend to marry, or who are already married, may wish to agree in advance what should happen to their money and property in the event that they should separate or divorce.
They can do so by entering into a pre-nuptial agreement before they marry, or a post-nuptial agreement after they have married.
What is involved in getting an agreement?
For an agreement to be binding (see below) certain criteria must be met, including:
- That before signing the agreement both parties must have made full disclosure of their financial circumstances, and any other material matters;
- That before signing the agreement both parties must have taken independent legal advice upon the proposed terms of the agreement;
- That neither party was coerced into signing the agreement against their will; and
- That the agreement does not prejudice the reasonable requirements of any children of the family.
And in the case of pre-nuptial agreements, the agreement must be entered into a reasonable time before the marriage, to reduce the possibility of one party being pressured to sign the agreement. There is no set time period, but twenty-eight days before the marriage has been suggested as a minimum.
Will the agreement be binding?
Obviously, an agreement will be worthless if it is not upheld by the court in any future divorce proceedings.
Just because the parties agree to the terms of the agreement does not mean that the court will uphold it.
However, the court should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.
Accordingly, the court is likely to uphold agreements in most cases, so long as the criteria mentioned above have been met, and there have been no significant changes in the parties’ circumstances since the agreement was entered into.
Getting an agreement
A pre- or post-nuptial agreement should really be drafted by a solicitor, to ensure that it is binding, and that it properly gives effect to the agreement reached between the parties.
Once the agreement has been drafted by one party’s solicitor it will be sent to the other party’s solicitor, for approval. And once the terms of the document have been agreed by both sides, fair copies will be prepared, and signed by the parties.
How Prince Family Law can help?
At Prince Family Law our lawyers have substantial experience of drafting Prenuptial Agreements and have dealt with Prenuptial Agreements where the assets exceed several million. It is imperative, prior to contemplating marriage, to seek legal advice to ensure your assets, in the unlikely event of divorce, are protected.
If you are already married and wish to discuss entering into a Postnuptial Agreement the principles are the same as a Premarital Agreement and advice can be offered on this.
Premarital and Postnuptial Agreements are not just for the wealthy and anyone who wishes to preserve their assets and avoid possible litigation on divorce should seek advice upon a Prenuptial Agreement with their future or current spouse.
Meet the Team
