What needs to be considered for a Marriage Contract?
It isn’t just for the Egyptian men. As a result of 2 decisions by the Court of Appeal (Radmacher) and Privy Council (MacLeod), it is possible to protect your assets in the event of a divorce. The two landmark cases referred to have given substantial weight to both prenuptial and postnuptial agreements.
Taking out Insurance
Pre-nups (and for that matter, post-nups) are not just for the rich and famous. Many marriages are second marriages. Often one party will still have the spoils from their previous marriage and will not want them to go to their new spouse if lightning strikes twice. Those couples should consider a nuptial agreement very seriously if they want to protect themselves from future claims that could see their retirement provision dramatically affected by a second divorce.
Top 7 things to consider when entering into a prenuptial or postnuptial agreement:
There are matters to consider in the context of the formalities of the Prenuptial Agreement itself in order to best achieve a binding contractual arrangement, and then there are the actual provisions of the prenuptial agreement and what it is that you want it to provide for in the event of divorce.
Formalities
1. Ensure that the purpose of the agreement is to regulate the financial arrangements between the couple for during the marriage or in contemplation of future divorce or separation
2. Ensure that it complies with normal contractual requirements including:
a. consideration and clear intent to create legal relations;
b. no undue influence, misrepresentation or contravention of public policy
c. no unequal bargaining position or abuse of power by one party over the other
d. the conduct of the parties before and after the agreement and all the circumstances of the agreement in deciding whether it should be upheld
3. Ensure that generous provision is made in the event of children, such that the court is unlikely to seek to intervene
4. Both parties must take independent legal advice
5. Both parties should fully disclose all their respective financial circumstances
6. Any prenuptial agreement should be drawn up at least 21 days before the marriage, (although the Radmacher case seems to go against that requirement being as it was signed 7 days prior to marriage)
7. Once signed, PUT IT IN A DRAWER AND FORGET ABOUT IT. You only need it in an emergency situation.
Provisions
Things to consider:
- The respective parties’ assets and independent wealth accrued prior to marriage and what they intend to retain.
- How they will hold, own and contribute towards post marital assets
- Provision for a review e.g. if child/ren born, medical reasons, incapacity, unemployment etc.
- Has or is any 3rd party contributing towards marriage/marital assets e.g. parent(s) and do they expect to be repaid
- In whose name(s) is any property to be registered?
- What arrangements will there be for payment of shared outgoings?
- Do you have Wills?
- Are there any trust deeds in connection with property ownership?
- What jurisdiction will govern any dispute in the future – where will the parties be living?
Be Prepared
So, don’t think of it as a portent of doom, but rather as a sensible and pragmatic way of insuring against the unexpected. At Paradigm Family Law, we think that couples should spend (nearly) as much time planning their post nuptial future as they do planning the nuptials themselves. We all insure our cars against third parties, why not our marriages?
Contact us
If you are planning for the big day, or have just got back from the Honeymoon and would like to protect and preserve your future together, please give our expert family lawyers a call on 0845 6020422 or drop us an email to [email protected]. We offer fixed fees, and a free initial consultation.
