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|Q||We're tying the knot next year, and a friend mentioned getting a prenuptial agreement. Is this worthwhile?|
|A||Kathy Scoot says: A prenuptial agreement is a formal document signed by a couple before they marry or enter a civil partnership. It sets out how the couple wishes their assets to be divided if they divorce or have their civil partnership dissolved. Here are several reasons why couples choose to create a prenuptial agreement:
•One or both parties wish to protect assets built up before the marriage.
•They wish to clearly state what will happen to any assets acquired during the marriage or civil partnership.
•There are family trusts and or inheritance plans need to be considered.
•There are debt obligations. Prenuptial agreements may be automatically enforceable in other countries, but this differs in England and Wales.
However, a professionally drafted and executed prenuptial agreement will likely be persuasive to the court. There are reported cases where a judge has considered a prenuptial agreement unfair and will not consider it during a settlement case. Fairness is always the court's key consideration, and it will always seek to protect the needs of both parties and any dependent children (current or future).
The agreement must be capable of being enforced contractually, and the terms of the agreement must be fair and reasonable. The parties must enter into the agreement at their own free will and will likely not be upheld if there's any evidence of undue influence or duress.
The agreement must be signed or executed as a deed, with parties providing full and frank financial disclosure. The agreement must also be prepared before the wedding to allow both parties to receive legal advice. The Law Commission report deals with Qualifying Nuptial Agreements and recommends that the prenuptial agreement be entered at least 28 days before the wedding. If you do not have enough time before your wedding, entering into a postnuptial agreement after your marriage is possible.
Kathy Scoot, HRJ Foreman Laws