A question that more and more brides/grooms to be are asking is "should I get a prenup?". Considered by many as being unromantic and arguably being the last thing on the mind of potential newlyweds, entering into a prenuptial agreement can in reality be a very sensible and logical step to take before walking down the aisle. This is particularly the case where one of the parties has, for example, family wealth, or a potential inheritance.
The courts are beginning to attach increasing weight to prenuptial agreements, the thinking behind this being that it is up to the husband and wife to decide what should happen to their money upon the unfortunate breakdown of a marriage. Provided that the agreement is not manifestly unfair on one of the parties, the courts are more likely than ever before to uphold the agreement when determining what the financial settlement between the parties should be. The signing of an agreement can therefore be a cost saving exercise as well, because if it is there and has been signed in the right circumstances, then this can ultimately save the costs of a long drawn out battle in court if the marriage breaks down.
Recent cases that have involved considerable family wealth on both sides, have seen the courts recognising that husbands and wives to be are entitled to decide what should happen to their own money. One particular case saw the bride's father insisting that she enter into a prenup as he was so anxious that the family wealth be protected - he even said that he would disinherit her if she did not sign the agreement and then went on to get married. This would also prove that her husband was marrying her for love and not money.
When deciding if a prenup should be upheld, the court will look at a number of factors, including:
- 1. The parties' understanding of the terms of the agreement - did they sign up to something without realising what they were agreeing to?
- 2. Did the parties take independent legal advice, or were they at least offered the chance to do so?
- 3. How much awareness did they each have of the other's financial situation? We will always advise clients that they shouldn't agree to anything without knowing what's there.
- 4. How involved were the parties in the negotiations of the terms of the agreement?
We are seeing an increase in the number of clients contemplating marriage who are coming to us for advice about prenups, prepared using the collaborative law model. Whilst making an appointment with a solicitor might not be up there on the list of wedding preparations, with the dress, cake, flowers etc, we would certainly suggest that even an informal chat to get some basic advice could be extremely worthwhile. Many family lawyers, including myself and a number of my colleagues, are specifically trained to work "collaboratively" towards reaching agreements, and so we can work with clients, round the table, to come to an agreement tailored to their specific needs and requirements. By doing it this way, it is less stressful and less costly, with both parties being involved in how their own finances are to be resolved.
If you would like to discuss anything in respect of this article or any related issues please do not hesitate to get in touch with myself or one of my colleagues. I can be contacted on 0113 336 3323 or firstname.lastname@example.org.
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