How important is a Pre-nup if you decide to get married?
5 years later, Jack and Sarah finally decide to take the plunge and get married. Sarah recently read an article about Prenuptial Agreements and wants to find out more about them, so she returns to her Family Law solicitor at Cunningtons.
We advise Sarah that, once she marries Jack, if they later get a divorce then the divorce courts will not automatically be bound by the terms of the Declaration of Trust, and they might decide that Jack should get more than 25% of the house.
We explain to Sarah that a Prenuptial Agreement is a formal Agreement entered into by a couple before they get married. Its intention is to set out very clearly what the parties have agreed will happen to their assets in the event of a future separation or divorce. It should deal with the following different types of assets:
- Assets that each party held in their sole name prior to the marriage;
- Assets held in joint names prior to the marriage;
- Assets each party acquired in their sole name during the marriage;
- Assets acquired by the parties in their joint names during the marriage;
- Assets acquired by way of a gift or inheritance during the marriage.
Is a Pre-nup like a Will?
Unlike a Will, a Prenuptial Agreement is not automatically binding on the Divorce Courts of England and Wales and nor is it automatically enforceable. Any Divorce Court has the power to depart from a Prenuptial Agreement if it feels that it is necessary to do so. Having said that, Prenuptial Agreements are usually upheld by the Court if:
- Both parties fully and honestly disclose their assets and means to each other before the Prenuptial Agreement is signed;
- Both parties obtain their own independent legal advice from a solicitor before signing the Prenuptial Agreement;
- The Prenuptial Agreement is signed at least 21 days before the wedding takes place;
- The Prenuptial Agreement is fair and just;
- The Prenuptial Agreement has a review clause so that it can be reviewed regularly;
- The Prenuptial Agreement sets out in very clear terms that both parties understand;
- The Prenuptial Agreement states that you both intend to create legal relations.
Sarah discusses this with Jack and they agree to enter into a Prenuptial Agreement that says if they divorce, they will still hold the house 75/25 to Sarah, and they will each keep assets held in their sole names.
You can read the next stage of Sarah and Jack's journey next week.
If you need advice about Pre-nuptial Agreements contact Cunningtons Family Law department.