Article by Franklin Price
“MARRY ME, NOT MY MONEY”- SHOULD YOU CONSIDER A PRE-NUP? When marrying (or re-marrying) later in life, there are many aspects to consider, including the signing of a pre-nup.
Growing tendency for judges to take pre-nuptial agreements into account in divorce
The long awaited judgment in the Radmacher v. Granatino appeal was finally delivered by the Supreme Court on 20 October 2010, upholding the 2009 Court of Appeal decision that the pre-nuptial agreement entered into by heiress Katrin Radmacher and her husband Nicolas Granatino on their marriage was binding on the husband.
However, despite this decision, pre-nuptial agreements are still not enshrined in English statute, unlike in most of the other European Union countries. Nevertheless, there has been a growing tendency in recent years for judges to take the terms of pre-nuptial agreements into account when deciding on the division of finances on divorce, particularly following the big money case of White v White in 2000 (in which the court pronounced that a 50:50 split should be the starting point on divorce), thus bringing us closer in line with Europe by the back door.
The importance of the Radmacher decision
It is felt that the recent Radmacher decision ought to give more confidence to those considering entering into pre-nuptial agreements as it means that there will now be a presumption that pre-nuptial agreements will be binding on a divorcing couple unless it can be shown that either circumstances have changed to such an extent since the signing of the agreement that it would be too unfair to hold the parties to it, undue pressure was put on one of the parties to sign the agreement before marriage or one party did not fully understand the agreement they were signing up to, which is where lawyers come in.
Best practice criteria when drawing up nuptial agreements
For family lawyers experienced in advising on pre- or post-nuptial agreement will adhere to certain best practice criteria when drawing up nuptial agreements which should significantly reduce the chances of such arguments being raised. These include:
• no pre- or post- nuptial agreement binding a child of the marriage
• there being full financial disclosure by both parties
• both parties obtaining separate prior legal advice from family law experts
• the agreement complying with general contractual principles and the terms being fair and reasonable
• in the case of a pre-nuptial agreement, there being a cooling-off period of at least 21 days between signing the pre-nuptial agreement and the marriage or civil partnership ceremony
• provision being made for reviewing the pre- or post-nuptial agreement at regular intervals and on certain events (e.g. retirement or redundancy)
• both parties willingly signing the pre- or post-nuptial agreement and there having not been any undue pressure put on either party.
Should I consider a pre-(or post-) nup?
Although seemingly unromantic, where pre-nuptial agreements are most useful is in the cases of short marriages, especially where there are no children. They can also be worthwhile if you have been divorced before and want to take all possible steps to protect your assets from any further split on divorce, particularly if you have children from a previous marriage. It may also be appropriate ton consider one where you have inherited a substantial sum of money which you think would be unfair to put into the pot of assets to be split on divorce. Another option, which is legally binding, is to enter into a post-nuptial agreement whilst you are married, on the same terms as a pre-nuptial agreement.
Whatever your reasons for wanting to enter into a pre- or post-nuptial agreement, it is essential that you take legal advice if you wish to reduce the likelihood of the court interfering with them.
So, if you are about to be married or are considering remarriage or have inherited wealth or are likely to inherit wealth, it would be sensible to take advice from a reputable family law department with experience of pre- or post-nuptial agreements.
Photo credit: ring photo Arvinol Badaramma