The number of couples entering into a prenuptial agreement prior to their wedding is rising, and although it might seem somehow unromantic, protecting your assets in case things go wrong can be very useful.
Prenuptial agreements are not officially recognised in English law, however, they gained recognition in the groundbreaking Radmacher v Granatino Supreme Court decision, whereby the judges recognised the validity of the prenup entered into between German heiress Katrin Radmacher and French investment banker Nicolas Granatino. The said prenup provided that neither party was to acquire any benefit from the other’s property in case of divorce, hence preventing the French banker from having any claim on his ex-wife’s fortune. In response to Mr. Granatino’s attempt to defeat the prenup, the Supreme Court considered that prenuptial agreements were likely to be upheld, as long as they were fair and freely entered into.
The validity of prenups therefore relies on judges’ scrutiny, and their application depends mostly on how well they are drafted.
Here are 6 tips to help you make your prenup valid.
1. Don’t wait until the last minute to sign a prenup
It’s always better to allow some time before completion of a prenup, as a hastily-drafted agreement is less likely to be upheld in court. A prenup should be made at least 28 days before marriage to show the judges that it was entered into with thought and care.
2. Receive independent legal advice
Receiving legal advice before entering into a prenup ensures that each party fully understands the implications of the agreement, its fairness and potential outcomes.
3. Agree voluntarily on the prenup
For a prenup to be valid, both parties must have agreed to it voluntarily, with no pressure or duress. The court will look at this condition very closely, particularly if one party has more to lose than the other.
4. Disclose all your assets
Engaging in full and frank disclosure of your property and assets at the time the document is executed proves that the agreement is transparent and facilitates its validity.
5. Be fair and realistic
The prenuptial agreement should be as fair and realistic as possible. An agreement under which the division of assets is weighted too heavily in the favour of one party may be judged to be unfair by the courts.
6. Review the prenup during the marriage
The prenup should be as detailed as possible and should cater for all possible changes of circumstances, including birth of children, future inheritances, loss or increase of assets, etc. Allowing for the agreement to be reviewed and amended during the course of the marriage shows that the prenup remains fair and appropriate over time and gives more weight to the agreement.
Now that you’re prepared to draft a powerful prenup, create yours with Rocket Lawyer !
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