Many people now want to agree before marrying or entering a civil partnership as to how their assets will be divided or protected should the marriage or civil partnership end with divorce or dissolution.
The only way to make sure that such an agreement has legal force is to enter into a written “pre-nuptial agreement”. Such agreements can also be reached after a couple have married in which case they are known as “post-nuptial” agreements. For civil partnerships these are “pre-partnership” and “post-partnership” agreements.
Such agreements are especially used:
- To protect significant assets acquired before marriage or civil partnership.
- To keep inherited assets separate from matrimonial assets.
- By people entering into a second marriage who had a difficult divorce beforehand.
- To protect business assets against a claim by a spouse or partner.
The Courts will now uphold such agreements in most cases. However, it is very important to have legal advice if the agreement is to be upheld. The following should be fulfilled:
- That the agreement is fair to both parties to the marriage or civil partnership and any children of their family.
- That both parties have given each other full and frank disclosure as to financial assets before reaching agreement.
- That both parties have had legal advice before entering into the agreement, or have had the opportunity to take it.
- That there has been no undue influence or pressure put on one of the couple by the other to persuade him or her to enter into the agreement.
- That both parties understand the nature and effect of the agreement before entering into it.
The best time to consider entering into an agreement is some months before your intended date of marriage. An agreement that is entered into in haste may be challenged and overturned by the Court after a great deal of time, stress and cost in litigation.
It is very dangerous to cut corners by using a “standard” agreement. This creates a serious risk that the agreement will be subject to challenge and be overturned, as it may not be suited to your circumstances and thus not fair.
At Bennett Welch we give a proper and comprehensive service to our clients. We will therefore take your instructions and draft an agreement that suits your needs. It may be that collaborative law, in which you, your partner and Solicitors meet and work together to prepare an agreement, is the best way to do this.
So that both you and your partner have appropriate legal advice we can provide you with details of other family law specialists who practise collaborative law and are committed to working in a non-confrontational way.
If you would like to discuss entering into an agreement, please contact Greg Randall at [email protected] or on 020 8670 6141.