Prenuptial Agreements may not be the first thing that comes to mind when planning a wedding. However, ‘prenups’ are not just for the rich and famous, they are in certain circumstances, a vital step to protecting assets in the event of the worst case scenario of Divorce, protecting not only assets but potentially preventing lengthy and costly disputed proceedings.
Though ‘prenups’ are not binding on courts in England and Wales, the courts will take regard to a ‘prenup’ as long as the agreement is fair in all the circumstances.
Indeed, in 2010 the Supreme Court made a seminal decision Radmacher V Granatino which found that the parties to a nuptial agreement will be held to their bargain in the event of Divorce provided that the agreement was ‘freely entered into by each party with their full appreciation of its implications, unless in the circumstances prevailing it would not be fairer to hold the parties to their agreement’.
The decision provided a 3-stage test as a guide when considering if a nuptial agreement is fair as follows:
- The agreement was freely entered into. The agreement is unlikely to be upheld where there was any evidence of fraud, duress, misrepresentation or any unconscionable conduct. Another factor to take into account is a party’s emotional state prior to signing the agreement.
- The parties must have full appreciation of the complications of the agreement. Financial disclosure is important. Independent legal advice sought by both parties is also helpful.
- It must be fair to hold the parties to their agreement in the circumstances. This is a factual consideration as at the time of Divorce. For this reason, the Courts jurisdiction is not ousted by any existence of a nuptial agreement.
Life is unpredictable and family dynamics often complicated; second marriages often raise even more issues when considering estate planning and how to provide for children from previous relationships. Taking steps to protect your family by way of a pre or post nuptial agreements may not only assist in avoiding uncertainty in the event of Divorce, it may support your estate planning and providing for all of your loved ones.
If you are preparing to get married or are already married but want to enter a post-nuptial agreement, take the right steps to protect yourself family and business, take control. For further confidential advice contact Maria Steele-Williams today for a free initial consultation by email maria@faranitaylor.com or direct call at 07808641625.