If you’ve been down the route of divorce previously, you are not going to want to re-engage that lawyer any time soon if your next relationship also hits stormy waters. Having a prenup might be the best way to protect your finances in the future.
Prenups are becoming more and more popular in England and Wales. We don’t quite match the Americans yet in terms of their popularity and validity…but I’ve no doubt that we soon will. Here are a few things you should know:
Any couple in the jurisdiction of England and Wales can have one before they enter into marriage, but unless they are entered using certain guidelines, there is a chance the court won’t uphold them on any divorce. They are not yet “contractually” binding, but the court does take them into consideration as one of the overall factors of the case when deciding how to divide the matrimonial pot if there is disagreement. If they are entered into properly however, then chances are the court will attach significant weight to them. The simple fact is, if you have wealth to protect you, you are much better placed having a prenup than not!
In order for your agreement to have as much weight as possible, then there should be no duress. In other words, signing at the door of the church, or being pressured into it by distressed in-laws does nothing to help when the court comes to decide how much weight to attach to it. They should be signed at least four weeks before the wedding, when the pre-match nerves haven’t yet kicked in and everyone can still think with a clear head.
It’s not good enough to expect your spouse to sign away their interest in something without actually knowing what that is. Each party to the agreement needs to honestly disclose their finances to the other. Any mishaps here could render the agreement open to challenge.
It’s no good trying to rush an agreement through; especially without the other party taking any legal advice or going to a high street firm with no experience, whilst you have the top legal minds in the country working on your agreement to suit your every need. There must be parity of advice. The financially stronger party should offer to pay for suitably qualified advice for their fiancé.
Having an agreement that ringfences everything for one party, whilst giving the other party nothing, risks being ripped up by the court if it is challenged. It is acknowledged that parties want to protect family wealth etc, but there also should be adequate provision at least by way of housing for the financially weaker spouse. Doing what is fair and right sets the discussions off in the right tone, and adds more weight to the agreement if a disgruntled spouse wants to try their hand upon any divorce.