What can you Include in a Prenuptial Agreement?
Kanye West rapped ‘we want prenups!’ but for those of us that aren’t concerned about gold diggers and vast estates, why do we want prenups, and what exactly is meant to go in them?
If you have financial assets of your own now, or you could receive an inheritance in the future, a Prenuptial Agreement can help to protect your assets; just in case your marriage doesn’t last.
If you’re thinking about getting a “Prenup” the first thing to do is get expert legal advice.
You cannot simply hand a drafted Prenup to your partner and say “sign here”. You both must get independent legal advice about what you are being asked to sign. The initial role of the Solicitor or Lawyer is to make sure you understand fully the terms of the agreement and that they point out any detrimental terms to you before you sign the Prenup, to make sure you understand the document fully.
If one of you is clearly disadvantaged by the terms of the Prenup, then the Court may decide to ignore it.
Both sets of Lawyers should sign declarations as well, confirming the legal advice they gave and the terms of the Prenup were understood by their client.
For initial advice get in touch with our Family Law Solicitors.
The old saying goes ‘never marry in haste’, and the same applies to your Prenup. Don’t leave making a Prenup to the last minute. You should allow at least 28 days before your wedding to draft, settle and sign the Prenup.
If you leave making a Prenup any later than this, it may not stand up in Court. This would be on the basis that it was rushed into on the one hand or that one person had pushed the other into it at the last minute to make sure the wedding went ahead. Obviously you can make a Prenup right up until the day of your wedding, but you are risking that the Court will not accept it.
The cornerstone of any form of financial settlement be it either following a divorce or for the drafting of Prenup is full, frank and relevant financial disclosure.
There should be detailed and comprehensive schedules of financial assets for you and for your partner. You should also set out what is included as a matrimonial asset and what’s not. If this is decided at the outset, it means fewer issues down the line. You’ll both need to sign declarations that you’ve have complied with the financial disclosure requirement so there can be no doubt.
The Courts in England and Wales have a very wide discretion to deal with matrimonial finances and they like to keep it that way. If your Prenup is going to be upheld then the Court will look at all the circumstances of its drafting and in the final analysis, whether its outcome is fair and reasonable and meets the need for everyone involved.
A few years ago, a high profile Prenup case involved a fabulously wealthy German Heiress and her impoverished Italian husband. They had completed a Prenup before they got married and the English Court had to decide whether or not their Prenup should be enforced. This case set the legal landscape on Prenups and it became clear that a number of factors must be met for a Court to take a Prenup seriously.
To make sure the Courts uphold your Prenup, getting expert legal advice before drafting your Prenup is just as vital as the drafting of the agreement itself.
Talk to our specialist Family Law Solicitors who can help you draft a Prenup or review your Prenup for you.
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