Is a prenup legal?
Is a prenup binding?
These are common questions asked when advising on prenuptial agreements. Very simply, if you are thinking about having a prenuptial agreement, it is more likely than not that you would be better off having an agreement than not having one.
A wealth of case law has evolved which clarifies specific situations where pre-marital agreements on divorce will be upheld. Subject to certain steps having been taken when they are prepared, it seems highly likely that a Court on divorce will now give significant weight to agreements reached autonomously by spouses before they marry.
The primary benefit of a pre-nuptial agreement is to displace various case law principles that have evolved concerning the sharing of assets on divorce, principally the presumption of equal partnership and equal sharing of matrimonial acquest. Without a pre-nuptial agreement the family home would almost certainly be shared equally on divorce, irrespective of who bought it or in whose name it is registered and most worryingly, no matter how short the marriage.
A prenuptial agreement helps to identify the less wealthy party’s needs before divorce, thus extinguishing this highly contentious and costly argument. It also expressly delineates which assets are ‘non-matrimonial’ in nature, thus removing another potential costly and acrimonious issue on divorce.
A prenuptial agreement should be regarded as a type of insurance. It guards against the worst case scenario and helps, where there is a disparity in wealth, to reassure parties that they are entering into marriage on a fair and equal footing. These agreements can assist in providing a solid foundation for what everyone hopes will be a very long and happy union, whilst recording how property, assets, income and investments will be distributed in the event of separation and divorce.
If you would like to talk about these issues with one of our specialist solicitor, please contact us on 01732 747900. We are based in Sevenoaks, Kent but are happy to offer advice by phone/email or, to meet with you in our Tonbridge office if it is more convenient for you.
- Protecting Pre-acquired Wealth Can you protect inherited wealth, such as the family farm, in the event of divorce?