A party seeking to restrict another's commercial activities must consider whether such terms are normal in similar, factual and contractual circumstances.
What is a pre-nuptial agreement?
A pre-nuptial agreement is a contract that a couple enters into before marriage which sets out their rights to property, assets, debts and income acquired before their relationship commenced, during the relationship, or after separation or divorce, in the event their relationship ends.
Entering into a pre-nuptial agreement
It can be very difficult to discuss the need for a pre-nuptial agreement with your partner, especially at the same time as planning your marriage. That said, it’s a sad fact that approaching 50% of all marriages fail, and having certainty should the worst happen can save a lot of upset and legal costs.
As such, both parties viewing a pre-nuptial agreement the right way can actually mean that, when signed, the agreement is a positive thing and a ‘first step’ towards the marriage itself.
When entering into the agreement there are a number of requirements which, if followed, make the agreement more likely to be upheld by the Courts. They include:
Time - there is no point a week, or so, before the wedding deciding to enter into a pre-nuptial agreement. This timeframe will give your legal advisers insufficient time to properly prepare and consider the documents, and will be less likely to be upheld by the court - even if signed by both parties. Parties should try to ensure the agreement is entered into at least a month before the wedding date. Given the legal work involved, this means beginning the process at least 2-3 months beforehand.
Financial position - both parties need to be fully aware of each other’s financial positions. As such, prior to entering into a pre-nuptial agreement, full financial disclosure should be exchanged.
Legal advice - importantly, both parties should receive legal advice during the process of agreeing the terms of the pre-nuptial agreement, and certainly before the agreement is signed. This avoids suggestions of undue influence or one party claiming they did not understand what they were entering into.
Terms of the agreement - both parties should think carefully about the terms of the agreement - do they work for them, are they clear and unambiguous and do they take account of changes in circumstance in the future? Quite often, pre-nuptial agreements have review clauses which activate after an agreed number of years of marriage or on the happening of a certain event.
Whilst not strictly binding, should the pre-nuptial agreement follow these requirements, its terms will be highly influential to the court’s decision - providing the decision is fair, reasonable and provides for the needs of any children of the marriage. Even if not upheld entirely, the terms of a properly prepared agreement would still be considered carefully by the court and may have the effect of limiting the award a court might otherwise have made.
Who should consider entering into a pre-nuptial agreement?
Public perception was that pre-nuptial agreements are the preserve of celebrities and the super-rich. That said, pre-nuptial agreements are increasingly being entered into in following situations:
- Couples where there is a significant imbalance in their financial positions
- Situations where one or both parties have been married previously and wish to preserve their first marriage settlement
- Situations where one or both parties have children from previous relationships and wish to ensure that their assets are preserved for the benefit of their children
- Couples who wish to remove the uncertainly of ‘who gets what’ if the marriage doesn’t work out
I am just about to marry or have married – can I still enter into a pre-nuptial agreement?
The simple answer is no. But, whilst it is not possible to enter into a pre-nuptial agreement, it is possible to enter into a post-nuptial agreement which is very much the same but is signed after the marriage. Quite often these are done either during a marriage, if parties have separated but have then reconciled, or otherwise where there was insufficient time to complete an agreement prior to marriage.
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