Business Assets : Interest in a business can be defined as separate property, ensuring that a divorce does not disrupt its operation or ownership Trusts : Interests in family trusts can be ring-fenced to prevent them being considered a matrimonial asset. Assets for children : For second marriages particularly, a nuptial agreement can protect assets intended for children from a previous relationship. Future assets : An agreement can also cover how assets acquired during the marriage can be handled, such as a significant expected inheritance.
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To increase the chances of a Court upholding the pre or post-nuptial agreement though, certain procedural safeguards must be met:
Statistically, there’s been a sharp uptake in the number of couples that are entering into pre and post-nuptial agreements - with an estimated 20% of couples putting one in place. A well drafted and carefully considered nuptial agreement will undoubtedly minimise acrimony on divorce. Avoiding long drawn-out and often costly Court applications that can have a detrimental effect on the parties’ ongoing relationship, especially where children are involved. It’s worth remembering that even with a valid nuptial agreement, a UK Court’s primary concern in divorce settlement is to ensure the reasonable financial needs of both parties and any children are met. A Judge will ignore or alter an agreement if it would cause undue hardship to one spouse. Matt is Head of the Family Team at Kerseys Solicitors in Ipswich and has over 25 years of experience dealing with family law related matters. To find out more about nuptial agreements and how they could benefit you or your family, contact Matt at Kerseys Solicitors by calling 01473 213311 or email matt.clemence@ kerseys.co.uk
Independent legal advice : Each party must obtain independent legal advice from their own Solicitors before signing the document. This makes sure both parties understand the implications of the agreement. Full and frank financial disclosure : Both parties must honestly and transparently disclose all their assets, income and liabilities. Deliberately hiding assets can invalidate the Agreement. Freely entered : The Agreement must be entered into voluntarily, without any undue pressure or coercion. For prenups, this includes signing the Agreement well in advance of the wedding date – a minimum of 28 days is recommended. Fairness : The Courts overriding concern is fairness. If the Agreement is deemed significantly unfair or does not meet the reasonable financial needs of one of the parties or any children, a Judge can set it aside. Made as a Deed : The document must be in writing and correctly executed as a Deed, including being witnessed.
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Are pre-nups a legal document? Whilst pre and post-nuptial agreements are not currently binding in England and Wales, the case of Radmacher back in 2009 essentially paved the way for Courts to apply significant weighting to nuptial agreements, when considering how to divide a party’s assets.
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