It’s prenup season
For many Family Lawyers the busiest period of work comes with ‘Prenup Season’ when, in the midst of intensive preparations for their impending weddings, people consider making arrangements to protect their assets in the event of divorce.
Our clients are not necessarily the particularly well-heeled; they often wish to secure provision for children from first marriages, or to protect an inheritance or pre-acquired wealth.
It is not unusual for us to receive instructions from someone whose parents, or grandparents are eager to protect their family wealth and, as such, insistent upon the parties signing the pre nuptial agreement, where the parties themselves may personally be trusting and unconcerned.
In situations such as this, it is important for the Family Solicitor to navigate delicate family tensions while also ensuring that the parties remain willing to sign without undue pressure.
It’s worth the effort
Whilst a pre nuptial agreement is not automatically binding, in exercising its discretion as to whether to uphold a pre nuptial agreement, the Supreme Court indicated that unless the agreement is demonstrably unfair, or signed unwillingly, it should be given decisive weight.
Increasingly, such an Agreement will be given due consideration by the court if certain criteria are met.
The first is that the pre nuptial agreement is signed within 28 days of the wedding.
As most weddings take place during the summer months, ‘Prenup season’ is characterised by parties wishing to legitimise their Agreement by meeting the 28-day deadline for drafting the Agreement, for each party to seek independent legal advice, and each providing full details of their financial assets – all while choosing wedding cake and devising inoffensive seating plans.
It is a huge amount to consider, although far less stressful than embarking upon a divorce without agreement.
That said, as is often the case, if the impending deadline is simply too much to contend with and to avoid any future accusations of having signed under ‘duress’ it may be sensible to decide instead to enter into a post nuptial agreement, ideally signed soon after the wedding, in terms similar those considered beforehand.
Many clients approach their solicitor just a few weeks before the wedding, and rather than rush to meet the 28-day deadline and compound the pre-wedding stress, careful preparation pre-wedding, with a view to signing immediately post-wedding might be the better option.
Prenups are for everyone
As stated, it is not just those with significant assets who approach Family Law solicitors for nuptial agreements.
Nuptial Agreements for those with more modest assets may be considered differently in the event of divorce because the assets of the family will often be divided according to the needs of the parties, usually to rehouse from equity following sale of the marital home into two separate properties, all with enough space for the children.
Equally, the recent ruling in the case of Standish vs Standish demonstrates the need to understand the different status of assets and whether they may be ‘ring-fenced’ and excluded from consideration when dividing the ‘’family acquest’ altogether, or if during the course of the marriage although initially intended to be ring-fenced, they have been used during the course of the marriage in such a way as to merit their inclusion in the divorce settlement.
Donna Goodsell considers that a carefully drafted Nuptial Agreement will offer clarity as to what may or may not be considered an asset of the marriage and offer protection where needed.
Whilst hoping the parties never divorce, it is important for the Family Law solicitor to assist clients in considering what they want, should that situation occur.
It is a valuable exercise to think about this at the time of the wedding and to review their thoughts periodically during the course of the marriage, for example, with the arrival of children or, perhaps, an unexpected inheritance.
Contact the team at Goodsells Family Law if you want to learn more about Pre and Post-Nuptial Agreements.