Pre Nuptial Agreements – Sealed With A Kiss!

Since the groundbreaking case of Radmacher –v- Granatino, the public’s appetite for Pre Nuptial Agreements has increased. Although the UK is struggling behind its European and American counterparts, where such documents have been the norm for many a decade, the desire to protect one’s assets on a divorce is greater now than it has ever been. With London being dubbed the “Divorce Capital of the World”, the potential cost in both financial and personal terms of a long bitter battle before the Courts has never been a less attractive prospect. There is therefore good reason, despite the obvious lack of romance, to consider a Pre Nuptial Agreement. They are ever more popular due to the rise in second marriages and since the Civil Partnership Act came into force.

The Government and Judiciary are so concerned about the escalating costs and damage done by adversarial divorce litigation that they are actively considering ways to support the concept of marital property agreements. The situation is currently under review and we have been a party to a formal response to their consultation paper on Matrimonial Property, Needs and Agreements.

Whatever the future holds for the legal status of such agreements, at this time Pre Nuptial Agreements are not binding on the Court, but form part of the evidence they take into account. The weight attached to them by the courts is still a moot point. In most cases, if the terms are fair and reasonable, the Court will look to uphold the agreement especially if the circumstances at the time of the divorce are similar to those when the agreement was signed. The current guidance to ensure that any agreement is as binding as possible is

1. That both parties should have independent legal advice and where necessary financial advice on the terms.

2. That both parties need to fully disclose to the other their financial circumstances and document the same.

3. To make the agreement as fair and reasonable as it can be in all circumstances.

4. That the agreement is signed by both parties more than 21 days before the date of the marriage or civil partnership.

Further, to enhance the protection of the Pre Nuptial Agreement, one can convert it to a Post Nuptial Agreement after the marriage or civil partnership has taken place.

Pre Nuptial agreements can be used either to earmark assets, acquired by one or other party prior to the marriage as a result of their own personal hard work or by way of gift and inheritance, as their ‘separate property’; or with the aim of defining the actual provision that will be made to a spouse by way of income and/or capital payments should the marriage break down .

Although it is a difficult notion to put to a loved one, so is the prospect of one’s hard earned resources being depleted by an expensive legal conflict should the love fade away.

If this is something you wish to consider please contact us on 020 7439 8692.