Elizabeth Hassall
Esther Edmondson
Hello and welcome to ASK. (This feature is pretty much what it says on the tin). In this issue we have Elizabeth Hassall & Esther Edmondson from HBJ Gateley Wareing, on hand to educate us on the topic of Pre-Nuptial Agreements. We ASK the experts for you. So, if you have any queries please just ASK and we’ll see what we can do.
My girlfriend and I are considering marriage. I have property and other assets that I acquired and inherited prior to my relationship with my girlfriend. Ideally I want to be able to protect these assets if the marriage fails. I am considering entering into a pre-nuptial agreement however I understand that they are not binding? Is this the case?
A Pre-Nuptial Agreement is a contract which parties proposing to marry enter into ahead of the marriage in order to agree how their financial situation would be governed if the marriage were to break down. It is certainly an interesting time in the area of Pre-Nuptial Agreements.
Presently they are not legally binding as a matter of contract under the law of England and Wales however they have been taken into account in many recent cases. Indeed a Pre- Nuptial Agreement is one of the factors within the Matrimonial Causes Act 1973 which the courts must consider in the event of marriage breakdown.
The position is particularly uncertain at the moment as we are awaiting a Supreme Court judgment in the case of Radmacher v Granatino. The Husband in that case appealed the Court of Appeal’s decision to overturn a previous court’s dismissal of the Pre-Nuptial Agreement the parties had entered into. The Law Commission is also investigating the issue of Pre-Nuptial Agreements.
Whilst the position may be uncertain, Pre-Nuptial Agreements should not be dismissed as a means of attempting to protect existing assets. A Pre-Nuptial Agreement is a form of insurance policy.
It allows both parties before they marry and in an amicable environment to set out their wishes for the disposal of assets in the event that the marriage breaks down. Whilst for many the idea of deciding what will happen if and when the marriage fails is hardly a romantic way to start married life, the best time for such a discussion is when all parties are in a positive frame of mind and can think clearly and calmly.
Pre-Nuptial Agreements are not just for the rich and famous. Any parties entering into a marriage where there are existing assets, inheritances or potential inheritances, children from a previous marriage or an imbalance of wealth are well advised to consider a Pre-Nuptial Agreement, which will be one of the factors which the courts are increasingly likely to take into account in the event of separation. The parties would need to ensure that adequate and appropriate provision is made for division of assets.
A Pre-Nuptial Agreement should be drawn up and entered into in sufficient time before a marriage to avoid any future suggestions of duress or other last minute pressure. There are as of yet no hard or fast rules in relation to timing. Three months prior to the marriage is an ideal time as any later could cause problems. It is also important to ensure that independent legal advice is obtained and that certain prerequisites, such as full and frank financial disclosure are followed otherwise the Pre-Nuptial Agreement may not be valid.
A qualified lawyer specialising in family law would be able to draft the Agreement which should also contain a review clause to ensure that the parties have the opportunity to review their circumstances at regular intervals during the marriage for example if a child is born.
The parties should then also consider a post-nuptial agreement after they are married.
There may also be other options available which would involve you and your family lawyer working with a private client lawyer.
For more information on Pre-Nuptial Agreements, contact Elizabeth Hassall on 0161 618 4503,
EHassall@hbj-gw.com or Esther Edmondson on 0161 618 5272,
EEdmondson@hbj-gw.com or visit
hbjgateleywareing.com
10 - WORK
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