Pre-Nuptial Agreements - A Practical Guide

A. Principles Which Deal With The Division Of Assets On Separation

Pre-nuptial agreements are still not binding under English law, although the courts are increasingly taking them into account on divorce where certain safeguards have been met. Although engaged couples understandably do not wish to focus upon what will happen should the marriage breakdown, many are fearful about potentially expensive and unpleasant divorces. Many people have already been through a divorce before and may prefer to achieve a greater control over the divorce process.

For a pre-nuptial agreement to be recognised by the courts, it would have to satisfy the following safeguards:

• Prior to entering into the pre-nuptial agreement, both the husband and the wife received independent legal advice. Both would therefore have to instruct their own solicitors.
• Prior to entering into the agreement, there must be full financial disclosure. Usually a schedule will be attached to the pre-nuptial agreement setting out all of the relevant financial details including assets, liabilities, income and pension provision etc.
• The agreement has to be realistic and fair. If the pre-nuptial agreement is weighted too far in favour of one person, then there is little chance of it being upheld by the court on divorce. The idea of a pre-nuptial agreement is that they should be with a view to regulating the division of assets on divorce and possibly to secure a more favourable settlement. The agreement must however be realistic in light of present divorce law.
• There should be no evidence of duress or undue pressure before entering into the agreement. A usual safeguard is that pre-nuptial agreements should be entered into at least 21 days before the marriage.
• It is recommended that pre-nuptial agreements should only last until the birth of the first child of the family or for up to a period of five years. Whilst pre-nuptial agreements can be prepared to provide for the birth of children or last for longer periods, they will have a reduced change of being upheld by the court on divorce. It is however possible to have a post-nuptial agreement if a couple wish to review the agreement after they have been married for several years.

Very few solicitors specialise in pre-nuptial agreements. Although they are becoming more popular, it is still a relatively uncommon area of the law. Advice should therefore be sought from a family law solicitor who has extensive experience of drafting pre-nuptial agreements.

For advice on pre-nuptial agreements and post-nuptial agreements from a Family Law Solicitor or a Divorce Lawyer call 0844 980 1428 or send us an email. We are available to take your call twenty four hours a day, seven days a week.