If you own a number of assets or intend to in the future and wish to secure comfort over the division of those assets being ringfenced from a divorce claim or simply want to have financial security in the event of a breakup then you may want to consider a prenuptial agreement.

Although when getting married or entering into a relationship couples would not want to think about separation it may be worthwhile to create and sign an agreement prior to your marriage in order to assist in the unfortunate event of a separation.

Such agreements assist you in the worst scenario and if signed can ensure you do not lose out following a breakdown and have control over what happens to your assets, finances and children in the event of a separation. Prenuptial agreements also allow you to protect what is yours and assists in this not being taken away from you.

Considerations

Prenuptial agreements are common in scenarios where one party has substantial assets or savings, or is expecting inheritance which you don’t want to risk in losing or splitting and can provide you with certainty as to how such assets are secured or distributed in the event of a separation.

Prenuptial agreements maybe considered where you wish to:

• Set out which assets will be divided or surrendered, rather than allowing all of your assets to be split or distributed. For example, you may want to agree that in the event of a separation, you and partner agree to give-up ownership of the matrimonial home which will be transferred to the children equally or held in trust until they reach the age of 18 or alternatively you may wish to protect your business and employment assets.
• Protect your inheritance: You may want to protect your parent’s wealth which you stand to inherit rather than having this distributed.

It is not uncommon for parents that have built a significant wealth to want to ensure their wealth which stands to be inherited by their children is unaffected by a separation. At Kabir Family Law we have consulted with large-scale family businesses where the intention has been to ring fence that asset within a Pre-nuptial agreement.

• Provision financial arrangements for child of previous relationships or intended children of the marriage or civil partnership.
• Ring-fence all or specific assets from being shared in the event of a separation
• Protect your self from a debt of the partner. We can assist with a debt clause in the event that you partner has a debt for which you do not want to be liable for should the marriage breakdown.
• You may wish to consider Pre-nuptial agreements to ensure you distribute assets to children from a previous marriage and secure their future should this apply.

When it comes to writing your prenuptial agreement, you will need to consider everything that you’d like to keep once the separation or divorce has been processed. This includes factors such as:

• Details of what will happen with joint bank accounts
• Who will manage expenses and/or other household bills and mortgages
• Details of how savings contributions will be managed
• Details of how finances relating to your children will be shared

You may want to also consider including:

• Personal and business assets
• Property and investments
• Inherited assets
• Overseas interests
• Protection from previous debts

You should especially consider creating a prenup agreement with your partner if you have a substantial amount of savings or are expecting a large inheritance that you don’t want to risk losing or splitting.

Within a prenuptial agreement the details of how custody of children is shared should not be included. The reason for this is that a Court would usually make the final decision on child custody in the event of a separation or marriage breakdown. Should an agreement comprise of how child custody should be arranged this may not be legally binding if the court provides for a different arrangement.

Unfortunately, our prenuptial agreement specialists are unable to provide advice to both parties to avoid a conflict of interest, In order for the prenuptial agreement to be recognised by the Court and binding each party needs to separately obtain and seek legal advice and representation. 

• When should I create a prenuptial agreement? Prenuptial agreements should be completed and signed by both partners at least 21 days before the marriage becomes official if done any later the courts may assume that you have been pressured into the agreement.
• Do prenups need to be signed? Yes; they need to be signed by both partners and the two solicitors involved.

The premarital agreement should be entered into at least 21 days before the registration of your civil partnership or marriage. Agreements entered into less than this period are unlikely to be recognised as being enforceable.

In England and Wales prenup agreements are not legally binding or enforceable. However outside of the UK such agreements are enforceable. Within the UK there is a recognition of these agreements which are being upheld by the Courts.

Since 2010 and the case of Radmacher vs. Granatino courts are more likely to consider nuptial agreements and attach a considerable weight to these agreements in divorce cases providing that certain safeguards have been put into place.

• The agreement must provide full and frank disclosure of all material information and assets by both parties involved who are forming the relationship.
• Both parties must confirm they have a clear knowledge and understanding of the intentions of the agreement and the implications the agreement may have. The agreement must then be signed by both parties.
• The agreement must not be entered into under any duress or threat and must be done so freely. For such agreements to be valid they must be entered into at least 21 days before the marriage or civil relationship taking place.
• The agreement cannot prejudice the position of any children of the family unreasonably.
• Pre-nuptial agreements that ring-fence non-matrimonial assets are more likely to be seen as ‘fair’.
• Unless there is a valid reason the Court should not override any terms agreed between the parties.
• Pre-nuptial agreements that deal with unknown or future contingencies are not likely to be considered fair and the agreement must have an element of fairness.

The above guidelines are supported by the 2014 Law Commission.

A properly prepared agreement can be highly persuasive to the financial outcome of a case although not legally binding. Here at Kabir Family Law our specialists can assist you in providing advice in relation to an agreement which could benefit you in the event of a divorce or separation.

When you’re creating a prenuptial agreement, there are a handful of issues that have the potential to undermine the weight of the contract in court.

These include:

• If there was a lack of disclosure from either party when the agreement was being written and not all assets were disclosed.
• If one party was found to misrepresent their current situation.
• If a spouse had any pressure applied to them when writing and/or signing by the other party or a family member.
• If there is an obvious display of exploiting a dominant position to secure an unfair advantage for one party.
• If the marriage had or hadn’t gone ahead without the prenuptial agreement

Not at all, you can opt for a post-nuptial agreement (‘post-nup’) which is similar to a prenup agreement yet as the name suggests, is created after the marriage has taken place.

Post-nuptial agreements are drafted with a view to assist a couple in financially planning their futures if there is a marriage breakdown. Similarly, a post-partnership agreement applied to civil partners.

The law surrounding all three types of nuptial or partnership agreements are considered at the of the marriage or partnership breakdown, as opposed to when the agreement was entered.

Our prenuptial agreement specialists at Kabir Family Law are able to assist you in creating a prenuptial agreement which you can rely on and which complies with the court requirements and criteria. We can also review and analyse any premarital agreement to ensure you are protected prior to you signing the same. You can contact our team to ensure that any agreement has the best possible chance of being considered and upheld when you are undergoing a divorce or settlement.