Any couple, whether in a marriage or civil partnership, may choose to establish a formal contract between the two of them, which specifies how their finances will be organised if their partnership or marriage breaks down. This contract is known as a Prenuptial agreement (PNA) and even though it is not formally binding in England and Wales, it is very commonplace. Even though legal rules around PNAs are scarce, courts still take them into consideration and are often used as decisive and persuasive elements in cases of financial relief after separation.
Whether or not your PNA will be upheld in court depends on various factors that would influence the court’s view. Essentially, the PNA has to be constructed properly which is down to some key factors. Most importantly, the agreement must take into account any children and their needs , and it must be fair on both parties. If the agreement does not meet the needs of the children, then the court will likely not refer to it and it will not be upheld in court.
Another important factor is that both parties must not enter this agreement under any undue influence or duress to sign the contract. Basically, both parties must sign the agreement with their own free will.
The timing around the PNA is also important as it needs to allow both parties sufficient time to carefully assess and review the document before signing. The PNA should also be signed at least 28 days before a marriage, which means that the concerned individual should consider revising the document with an expert solicitor many months before signing. Even though it is not obligatory, it is highly recommended that both parties seek legal advice from expert solicitors throughout the drafting and signing phase so that they fully understand and are aware of all the implications in the document. Both parties will also need to fully disclose all of their financial circumstances before the agreement. This permits the transparency required for the document to become a legitimately binding agreement.
Using a mediator to establish the terms and details of a prenup is a very useful tool that can be used to avoid potential disagreements that may arise between a couple when drafting a prenup. The mediator will not make any decisions on anyone’s behalf but instead help each individual decide on terms whilst ensuring that everything in the document remains fair. It is crucial that the prenup has a solid degree of fairness as this is what would hold the validity of the document in court. A prenup that is considered unfair will automatically be discarded and not upheld in court.
When entering a prenup, there might be concern for either party that the terms are set in stone and are undisputable. As circumstances are ever changing, a prenup agreement might become no longer valid and there will be room to challenge it in court. Courts do not hesitate to nullify an agreement if it has become unreasonable or unfair to either party.
It is crucial for each partner to get their own independent legal advice when setting up a prenup. It is not recommended that both partners use the same solicitor as this can create bias and a conflict of interest. As mentioned previously, the most important aspect of this document is that it is fair and lawful. The role of expert family solicitors London is extremely important in maintaining this aspect in the document. Having a carefully drafted prenup is extremely important if both individuals wish to have a peace of mind. The document must have a high level of fairness and legitimacy and to ensure this, it is best to draft it with an expert solicitor who has extensive experience. This will help avoid situations further down the line where the court might rule out the validity of the document. The aim of this document is to give either or both parties peace of mind, so it is of utmost importance to draft it with care and attention relative to both parties’ needs and circumstances.