What is a pre-marital or pre-nuptial agreement?
A pre-marital agreement is an agreement entered into prior to marriage which sets out how the assets of the parties are to be divided in the unfortunate event of a breakdown of the marriage. It is a useful tool to protect assets you have acquired before the marriage.
These agreements are becoming more relevant, particularly following the recent case of Radmacher v Granatino decided by the Supreme Court in October 2010. The Court gave guidance as to how Courts should treat pre-marital agreements stating:
‘the Court should give effect to a nuptial agreement (pre-marital agreement) this is freely entered into by each party with the full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement’.
Although this case does not state that pre-marital agreements should be binding, the decision does go a long way down that route and in future, significant weight will be given to the terms of a pre-marital case and divorce cases.
What should you do?
It’s vital that both parties receive independent legal advice before entering into such an agreement. That means both parties should fully disclose their financial position to the other and each receive their own independent legal advice before entering into the agreement.
There must be no evidence of any undue pressure being exerted on either of the parties to sign the pre-marital agreement and the agreement must be made at least 21 days before the marriage and preferably some months beforehand. The pre-marital agreement terms must be fair to both parties and meet the needs of the parties and their children in the event of the marriage breaking down.
How can we help?
The FDR Family Law team provides all the assistance you will need in respect of pre-marital or pre-nuptial agreements. We have considerable expertise and experience in dealing with all aspects of matrimonial law offering advice and help at every stage to ensure your interests are adequately represented in this evolving field.
To learn more about how we can help you please contact us.
