Prenuptial Agreements – Are they valid?
When most people think of Prenuptial Agreements they think of celebrities and high profile divorces. In fact Prenuptial Agreements can be worth considering for many couples intending to marry and recent case law means that it is now possible to protect your assets.
In 2010 the Supreme Court in the case of Radmacher emphasised that Courts should give effect to nuptial agreements that are freely entered into unless it would be unfair to hold parties to their agreement.
So what will Court’s look for in a Prenuptial Agreement if it’s terms are to be upheld as binding?
1. Both parties should receive their own, separate and independent legal advice. So this means that you should both consult separate solicitors who can advise each party about the agreement.
2. The parties must enter into the agreement freely. This means that there must be no undue pressure or influence exerted which induces either party to sign the agreement.
3. Each party must know what the other has by way of assets. This means that, before the agreement is signed, each party must have disclosed to the other, the entirety of their assets. This prevents either party entering into an agreement without full knowledge as to what assets are going to be covered by it.
4. There must be no other factors at play such as fraud or misrepresentation.
5. The circumstances of each party. Court’s would be interested in the age of the parties, their maturity. Previous marriages may be relevant as well as any other circumstances that had a bearing on the agreement.
6. If the terms of the agreement are patently unfair then it is more likely that the agreement will not be found to be binding on the parties, but not necessarily. The Court’s do also want to uphold the freedom of individuals to enter into agreements where they have been appropriately advised.
It is really important to understand the contents of a Prenuptial Agreement before you sign it, to decide if it is right for you and will achieve your aims in the event that a marriage breaks down.
If you would like to discuss the drafting of a Prenuptial Agreement or need advice on one that has already been drafted, call us today to make an appointment. If you are engaged in a Divorce and need advice as to whether a Prenuptial agreement will be binding on any financial settlement, call us today.