Who are pre-nuptial agreements for?
Do not be fooled into thinking that pre-nuptial agreements are just for celebrities. We have all read about the rich and famous and the lengths they go to preserve their wealth and to avoid messy and public court actions when they separate. But Pre-nuptial agreements are becoming more popular with lots of couples preparing to marry, perhaps because they have had a negative experience with divorce, or because they have pre-marital wealth or assets from a previous relationship which they want to protect for their children. It may also be that they have shares in a family business which they want to protect. You do not need to be rich or famous to put a pre-nuptial agreement in place.
What do pre-nuptial agreements do?
In a nutshell, a pre-nuptial agreement is a written contract which can be as simple or complicated as necessary but which essentially creates financial certainty in the event of a separation.
As long as the terms of the pre-nuptial agreement are fair and reasonable when the agreement is entered into then any assets can be protected and the agreement cannot be overturned. Your partner should take separate legal advice on the terms of the agreement as well.
Why should you get a pre-nuptial agreement?
No one enters into a marriage with the expectation that they will separate and get divorced but a pre-nuptial agreement provides a level of certainty as to what will happen to assets in case you do separate.
Couples who have built up assets prior to marriage, perhaps during an earlier relationship or marriage, will enter into a pre-nuptial agreement to protect those assets. You can ring fence those assets, preventing them from being included in the list of assets available for division on divorce. A pre-nuptial agreement can also be used to safeguard inheritances and gifts that might been received during the marriage as well.
When should you enter into a pre-nuptial agreement?
You should not leave the preparation of a pre-nuptial agreement to the last minute. If you have assets you wish to protect, take advice about this and ensure that you leave plenty of time, say two to three months, to prepare the pre-nuptial agreement. Leaving it right until the last minute could make it easier for your partner to claim that they were forced to sign the agreement and they did not have enough time to properly consider it.
If you are already married then it is not too late to deal with this. Whilst the name changes from pre-nuptial agreement to post-nuptial agreement, the principles are essentially the same and you can still exclude assets and achieve certainty in the event of a subsequent separation.
If you would like any advice about pre-nuptial (or post-nuptial) agreements, then please contact a member of the Blackadders Family Law team, who would be happy to assist you.
Blair Duncan, Solicitor
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