WBW partner, Fiona Yellowlees asks if Pre-Nuptial Agreements (Pre-Nups) are worth it.
With all the careful planning which goes into a wedding, should there not be some financial planning too? “A Pre-Nup, is a written agreement signed by a couple before their wedding, outlining how they wish to deal with property and assets they already own once they are married and, in the event of separation and divorce, what is to happen to that property. In addition a Pre-Nup can incorporate clauses about what happens to assets acquired during the marriage.
“A Pre-Nup is not binding on a court, but the Supreme Court indicates that a judge should make an order in the terms of a Pre-Nup which was freely entered into by each party with a full understanding of its meaning, unless ‘prevailing circumstances’ would make it unfair to do so. “The court is maintaining a flexible approach and there are factors that must be considered when entering into a Pre-Nup. Firstly there must be the opportunity for both parties to receive independent legal advice; this is important to ensure that there is no duress on either party. Secondly, there should be a good period of time between the preparation, consideration and signing of the Pre-Nup before the marriage to avoid the situation of “sign, or there is no wedding….” And, lastly there must be full and honest disclosure of the assets that each has and the information recorded in the Pre-Nup.
“Duress, pressure of time and lack of honesty could make a Pre-Nup invalid. Some examples of “prevailing circumstances” are the needs of any relevant children or factors such as the ill health of one party.
“Are they worth it? Yes they are. Courts are looking at these documents more often and if they have been carefully prepared, the court is more likely than not to make an order following the terms of the Pre-Nup as long as it is fair and reasonable and reflects the needs of the parties at the time of the divorce.”
For a free initial consultation contact Fiona Yellowlees.