Pre nuptial Agreements
January 25, 2016 2:50 pm
There is much talk every New Year of “Divorce Day” the day on which, according to some, there is a significant increase in the number of enquiries that solicitors receive about divorce. The theory being that after the Christmas period is over people want to make a fresh start. The festive period can also be a positive time for people in relationships as many often choose to get engaged during this period.
Take Rupert Murdock and Jerry Hall for example, they recently announced their engagement after just 4 months of dating. There have already been reports in the press that, on marriage, Jerry will have to move out of the mansion in which she currently lives as a part of her settlement from her union with Mick Jagger. No doubt there will also be questions over whether; prior to their marriage they will enter into a prenuptial agreement.
Many, including, if the tabloids are right, Cheryl Fernandez-Versini, don’t believe in prenuptial agreements because it goes against the principle of marriage but perhaps she may have changed her mind now that she is reportedly facing a divorce after just less than two years of marriage to her French husband.
Prenuptial agreements are becoming more popular and are now being held in higher regard by the courts than previously provided that they have been properly drafted and advised upon. They are not just for the rich and famous. Many couples with modest assets enter into a prenuptial agreement, not because they envisage their marriage failing but because they are realistic that this may happen for whatever reason and want to reduce the uncertainty and acrimony of a dispute about their finances should they ever divorce.
Take the Jerry Hall and Rupert Murdock example, if Jerry does have to relinquish her rights in respect of her current home as a result of her marriage, they might agree that, in the event their marriage fails, she will receive sufficient to enable her to purchase another home. So a prenuptial agreement could protect both of them. This is obviously an extreme example but because a prenuptial agreement can provide certainty it can also reduce conflict within a marriage.
Prenuptial agreements are not legally binding. The Court retains its jurisdiction to set aside an agreement in the event of a divorce but, if an agreement has been drafted properly it will have a substantial impact on the Judge’s decision in many cases. In practice this has resulted in the Court upholding the terms of an agreement notwithstanding the fact that, without an agreement, it would have made a very different decision.
It is however important that both parties to the marriage enter into an agreement of their own free will, without any pressure from each other or a third party. For this reason it should be agreed as far in advance of the wedding as possible to avoid any suggestion that one party felt pressured into agreeing terms for fear of the wedding being called off at a late stage.
Both parties should have a full appreciation of the implications of the agreement and, whilst they are not required to take legal advice, it is advisable and will result in the agreement holding more weight if it is ever considered by the Court. Both parties should be open and honest about their financial situation and the agreement should make reference their assets and income at the time.
Very often parties enter into a prenuptial agreement to protect assets that they have either inherited or earnt prior to ever meeting their fiancé/fiancée. It is often a complaint of divorcing parties that it is unfair for their spouse to receive a share of the money that they have inherited simply as a result of their marriage but that is what happens in some cases.
It should however be said that one of the major factors for a Judge to consider on divorce is the children of the marriage. They are unlikely to uphold a prenuptial agreement that does not make provision for the children. For that reason consideration must be given as to what would happen in the event that the parties have children even if they are not planned at the time of the marriage.
Should you require advice in respect of prenuptial agreements or any other family matter we would be more than happy to discuss this with you.
Demelza Butler can be contacted on 01473 230033.