Pre-nuptial agreements are not just for the rich and famous.  They are becoming more and more popular in England for those with much more modest resources.

Why have a pre-nuptial agreement?

Reasons include:

• Ensuring, if at all possible, that the parties’ assets remain theirs, if the marriage fails;
• Providing that their assets, or at least a large portion of them, go to their children, in the event of their death; and
• Arranging matters, which may become problems after the marriage.

Pre-nuptial agreements can, for example, cover the division of all property, determine its ownership, arrange for a person to occupy a home and on what basis, deal with the responsibility for debts and the payment of outgoings.  They are likely to be suitable for, in particular, the client who has already been divorced and for widows and widowers.

Requirements for a pre-nuptial agreement

 In order to avoid allegations of undue influence by one party against another:

• The parties must exchange full and frank disclosure of their respective financial positions;
• Both parties must obtain their own independent legal advice; and
• The agreement must be signed no less than 21 days before the wedding day.

Are pre-nuptial agreements binding?

Currently, pre-nuptial agreements are not binding under English Law.  It is not possible to oust the jurisdiction of the court.  However, if the above requirements are met then, in any future dispute as to validity, the court is more likely to take the view that a formal agreement, properly and fairly arrived at with competent legal advice, should not be set aside unless there are good and competent grounds for concluding that any injustice will be done by holding the parties to the terms of their agreement.

Courts have been looking more and more favourably at pre-nuptial agreements.  This stems from the fact that the court is required, in exercising its discretion, to consider all the circumstances of the case and the conduct of each party.

If you would like advice on preparing a pre – nuptial agreement, please contact Alison Hanna, Senior Solicitor and Collaborative Lawyer, on 01206 577676 or arh@goodyburrett.co.uk