Remarriage? Consider making a Pre-Nup

Pre-nuptial agreements are legal agreements made between two people before their marriage has taken place. This document sets out how the couple wish their assets (and debts) to be divided between them should they separate or divorce. These agreements can also deal with income, including current earnings and future earnings. 

If there are already children of the family, pre-nups can deal with financial provision for these children in the event of a separation. However, additional children born after the date of the pre-nup will require the parties to revise the terms of the agreement at that time. Often, pre-nups have review clauses included which sets out what circumstances require a revision of the agreement such as a child being born.

In  many countries now, pre-nuptial agreements are legally binding. Although pre-nups and post nups are not binding in England and Wales, these agreements create an extremely persuasive document in Court provided that they are executed correctly. Following the case of Radmacher v Granatino [2010] the court concluded that effect should be given to a pre nuptial agreement that is “freely entered into by each party with a full appreciate of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement”

In order for a pre-nuptial agreement to carry significant weight, there are a number of requirements:-

  1. The agreement must be contractually valid
  2. It must be executed as a deed and must contain the relevant statement
  3. The agreement must have have been made within 28 days immediately before the wedding
  4. Both parties must have received disclosure of the other’s financial information at the time the agreement is entered into
  5. Both parties must have received legal advice at the time that the entered into the agreement

The overall requirement is that any pre-nup must be fair, as per the case of Radmacher. In this case, a three stage ‘fairness’ test was set out as follows:-

  1. The agreement must be freely entered into;
  2. The parties must have a full appreciation of the implication of the agreement; and
  3. It must be fair to hold the parties to their agreement in the circumstances prevailing

A pre-nup can provide much more certainty than letting the court decide in financial proceedings in the event of a divorce. Perhaps the main intention for most couples entering into a pre-nuptial agreement is to protect their ‘pre-marital’ property i.e. assets and properties which are owned by one party prior to the parties’ marriage.

As pre-nups must be drafted correctly in order to carry any weight with the court, it is important that you seek legal advice as soon as possible and well before the date of your marriage. Our solicitors at Hunter & Uro have the expertise to ensure that your pre-nup is drafted appropriately and quickly to enable you to concentrate on your wedding. Serving Bedford, Northampton and Milton Keynes, our lawyers can help you with your family law and divorce matters. Contact us for a free 30 minute consultation.

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