A prenuptial agreement, is a written contract entered into by a couple prior to marriage or a civil partnership that enables them to select and control many of the legal rights they acquire upon marriage, and what happens when their marriage eventually ends by death or divorce.
Couples enter into a written prenuptial agreement to supersede many of the default marital laws that would otherwise apply in the event of divorce, such as the laws that govern the division of property and retirement benefits and savings, and the right to seek alimony with agreed-upon terms that provide certainty and clarify their marital rights. A premarital agreement may also contain waivers of a surviving spouse’s right to claim an elective share of the estate of the deceased.
It is important to note that prenup agreements are still not legally enforceable in England and Wales at least for now. However, following the landmark decision in the case of Radmacher v Granatino in October 2010, judges are attaching more weight to prenup agreements and are more likely to uphold them, unless they are considered to be unfair at the time the parties get a divorce.
In our experience, a prenup agreement is more likely to be upheld if:
- It is signed at least 21 days before the wedding day its contents are reasonable
- It is clearly not out of date (providing for future children, for example, and preferably a review after a period of time)
- It was properly drafted by a family lawyer with both parties receiving independent legal advice and providing full financial disclosure.
How do I create prenup agreement?
When considering if the prenup agreement is fair and should be upheld, the Court will look at things such as whether both parties understood it properly and if they had enough time to review it before signing.
Therefore, when a prenup agreement is created you need to ensure the following:
- To comply with UK law, the prenup must be drawn up by a qualified solicitor
- Both parties must have separate solicitors to avoid any claim of conflict of interest
- All assets must be fully disclosed by both parties
- Both parties must fully understand the agreement
- Both parties must voluntarily agree to it
- Both solicitors must confirm it was entered into freely and knowingly
- The prenup agreement should be signed at least 21 days before the marriage.
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