Matrimonial and family Pre-nuptial agreements
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Personal: Pre-nuptial agreements A pre-nuptial agreement is a document signed by a couple who are intending to marry each other. It sets out matters which they agree upon before they marry. Usually the agreement deals with how the couple wish to deal with the financial settlement in the event that the marriage breaks down.
Pre-nuptial agreements are becoming more popular and certainly Davies and Partners are advising more people in relation to them, however pre-nuptial agreements are not automatically binding in the event of a martial split. So why are they becoming more popular?
Firstly the courts must have regard to all the circumstances of the case and the fact that a couple entered into a pre-nuptial agreement is a factor which the Court can take into account. Although the Court is not bound by the agreement, the court can take it into account and in considering how much weight if any to give to the agreement the Court will consider a number of matters. The Court will carefully consider the circumstances in which the agreement was signed. For instance did both parties fully understand the agreement and were they separately legally advised? Was pressure put on either party to sign it? When was the agreement made? Was there a full and frank financial disclosure made before the agreement was signed? Did one person exploit their dominant position either financially or otherwise? Was the agreement entered into in anticipation of there being a child? Have any unforeseen circumstances arisen since the agreement was made to make the agreement unjust? Would it be unjust to hold the parties to the agreement?
These and other factors are considered by the Courts when deciding whether to pay regard to a pre-nuptial agreement. There are cases in which the Courts have commented that pre-nuptial agreements may be upheld. That is not to say the agreements are legally binding but the Courts can take the view that the agreement was properly and sensibly entered into and that in the circumstances of the case the Court feels that it should follow the terms of the agreement.
These agreements are not "off the peg" they are tailored to meet the circumstances of each case.
Another reason for the increase may be that couples who marry for the second time obviously hope for a long and happy marriage but they wish to try to avoid the conflicts which can arise if there is a marital split. They may wish to avoid the conflict they experienced at the end of their first marriage. One party may have significantly more assets than the other and a couple may already have children from a previous relationship and do not intend to have any further children. However we have dealt with cases in which one party is rich and the other is of modest means. The couple sometimes agree that in the event of the marriage failing after a short period of time the claims which can be made are limited.
Another reason for making a pre-nuptial agreement can be where there is an international element. A couple may express a preference that in the event of their being matrimonial difficulties the case would proceed in a particular jurisdiction. Such an agreement is not binding on the Courts but there have been cases in which the Courts have given considerable weight to the couple's agreement depending on the circumstances of the case.
It is not possible for Davies and Partners or any other solicitor to advise both parties in connection with a pre-nuptial agreement. It is in their interest to have independent legal advice.
We no not lose sight of the fact that we are acting for a client who is planning to marry and Davies and Partners are sensitive to the emotional and financial needs of clients.
For an example situation see FAQ's
It is possible although rare for there to be a post-nuptial agreement that is to say an agreement made between the parties after the date of their wedding.
If you wish to discuss matters with one of our team concerning your situation please do not hesitate to contact us on This e-mail address is being protected from spambots. You need JavaScript enabled to view it or telephone us. Click here for our contact details.
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