You may be contemplating marriage or engagement. You may have had a divorce before. You might just want to avoid all the acrimony and cost on any divorce. Your parents may be insisting on you to safeguard their inheritance. You have heard that it my protect your assets and income on any divorce. You just want to talk over with someone your concerns about protecting your finances from potential claims. You are in business and want to protect your interests.
Whatever the reason we’re here to help. If you can’t quite find the answer you were looking for feel free to contact us for more information.
What is a pre-nuptial agreement?
They are also known as Pre-Marital agreement or Ante-nuptial agreements or for short they are known as Prenups.
It is a signed agreement dealing with various financial and other matters which the parties would like to happen in the event of separation of breakdown of marriage.
When should I enter into a pre-nuptial agreement?
As soon as possible but at least 42 days for the wedding.
Ideally the Pre-nuptial should be entered into around 6 months before any wedding date, to give time for both parties to reflect on the agreement and negotiate the terms. The courts prefer that the Pre nuptial is entered into long before the marriage. It shows to them that there has been sufficient time for the parties to get advice and more importantly less likely of duress or coercion and more likely to be accepted by the court in case any party tries avoid the agreement.
How much does a pre-nuptial cost?
There are a number of stages the solicitors have to go through with you.
- Find out why you are seeking this advice, find out what assets you wish to protect and to make sure he/she understands your situation fully.
- Get down all your financial information.
- Go through the current law on prenuptial agreements.
- Go through the various provisions and ask you to consider the various scenarios of what may happen on any separation or divorce.
- Have another meeting with you to get your final instructions before the solicitor starts drafting the pre-nuptial agreement.
- Go through the draft agreement with you and the financial disclosure.
- Send the prenuptial to your partner/solicitors.
- Some negotiations may ensue to reach a meeting of minds and you may need to meet with the solicitor to discuss various amendments.
- Finalise the agreement.
- Deal with the post-nuptial agreement.
Costs start from £1200 plus VAT or more depending on the complexity and amount of negotiations. We will try and fix our fees.
Why are these agreements so expensive, I only want a basic agreement to protect my assets?
Our agreements include provisions which are exclusive to this firm. They include clauses which can protect you from future windfalls including inheritance, future maintenance claims, protecting your family home or interest in buy to let property. We even have a clause which could protect you from buying and selling property or assets and any profits you make from such ventures.
But your solicitor should give you a good idea of the costs at the first meeting. But this is compared to costs of between £10,000 – £15,000 of legal costs per party in a divorce and dealing with finances right up to trial.
It is important always to keep in mind that however much you to try and protect assets either brought into marriage or windfalls/profits made during marriage, the courts can still intervene and in their discretion depart from the agreement you have reached on any divorce or separation.
I do not want other people to come to know that we entered into such an agreement.
You can have a confidentiality clause inserted it the agreement. However this should exclude legal or professional advisers.
When does a marriage come to an end?
Well, this may sound like a strange question but this relates to working out when both parties regard their separation to have begun. As this in turn will determine when the prenuptial agreement will kick in. It can be defined in the prenuptial agreement; It could be when one party writes formally. It may even be a period of living apart. But it is important to agree this in advance to avoid confusion later.
Do I need to make provision for my future spouse in a prenuptial agreement?
When approaching a pre-nuptial agreement the following should always be borne in mind.
“The fairer the agreement the more likely the courts will uphold it”
So for example if one party has brought in all the assets and the other has limited assets then it would be seen a reasonable to give the other party some capital or money in any divorce. Such a “sweetener” will also ease the potential acrimony and even avoid a party looking to try and overturn such an agreement in the courts.
This could be as generous a giving them a home for a short while or to giving them money to find a home. However, the courts will look at the background of the parties at the time of entering into the agreement and you would of course have to be confident that the party with the money will still have it at the time of any divorce. So perhaps being on the safe side you might consider a percentage of any asset. The solicitor advising on the prenuptial agreement can explain and go through various scenarios and provisions which will suit your needs.
Can we both come and see the solicitor to get advice about a pre-nuptial agreement?
Yes. But the solicitor could only give you generic advice. The solicitor could not act for both of you. If the solicitor sees you both first and thereafter one of you elect to use this solicitor, the solicitor may not be able to act if there is any conflict of interest. However if the solicitor has only given generic advice and the other party is happy for him/her to act then as long it is recorded in the agreement and the other party has been given a chance to obtain independent legal advice then this should be acceptable by the court.
Do I need to do anything further after I have signed the Prenuptial agreement?
You should ensure there are two originals also called counter parts and copies held with your will and with the solicitor who drew up the agreement (although solicitors do not have to keep your file for more than 6 years). Ask if this can be kept separately, there may be a small fee for this.
Do I have to enter into any further agreements after the prenuptial agreement?
Ideally yes. You should ensure that both parties confirm the contents of the Pre-Nuptial agreement by way of a Post-Nuptial Agreement. You solicitor will draw this up for you.
I have recently seen a lot of court cases about Pre-nuptial agreement how does this affect me?
More recently, the prenuptial agreement has been given a recognition that it has never before received in the history of Matrimonial law in the English jurisdiction. In the case of Grantino v Grantino also known as NG v KR (prenuptial contract) a Husband from France had entered into a prenuptial agreement with his Wife from Germany. Both countries jurisdictions give legal status to the prenuptial agreement, but the marriage itself took place in the jurisdiction of England and Wales. The parties entered into a prenuptial agreement which specified similar terms to that of the one in Crossley v Crossley (above) with the exception that the contract specifically provided that any assets or income accrued by either throughout the course of the marriage, would remain owned by that party. The husband was shown a draft of the agreement a week prior to the wedding, and did not seek legal advice and there was no disclosure of any of the Wife’s assets. See our comprehensive article at Garner & Hancock Prenuptial Article
This Guidance as been produced by Vinay Tanna, a partner at Garner & Hancock Solicitors
Garner & Hancock is an established firm in west London and south west London, covering the area of Richmond to Brentford and Hounslow to Chiswick.
Our Solicitors and executives are experienced in Property, Tax and of course Matrimonial Law.
Garner & Hancock is member of Resolution. Members of Resolution are experienced Matrimonial Law experts.
© Garner & Hancock LLP 2016
We must also give a general disclaimer that the advice given is generic and the law is correct as at January 2016. You should not rely on this advice to your specific situation as it always best to seek professional help to help you through the law and its application to your case.
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