A Pre-Marital Agreement is a contract between yourself and your future spouse or civil partner. The purpose of the document is to record your position and intentions prior to entering into the marriage/civil partnership. It is can be important to have one if either person has inherited assets or you wish to protect a child’s inheritance. However, they should not be seen as only for the wealthy. Unfortunately, it is true that marriages and civil partnerships do breakdown and having an agreement setting out what should happen in this event can be extremely useful and minimise any conflict or uncertainty.
The document does not override the law in relation to couples who dissolve their relationship. It is, however, becoming more common for the court to take these documents into account as part of the circumstances of the case, should the relationship come to an end.
In order to ensure that your Pre-Marital Agreement can have more influence and weight as one of the circumstances of your case, it is important that certain guidelines should be followed when it is prepared. It is important that:
- the Agreement is in place no less than twenty-eight days before the partnership takes place
- that you both have independent legal advice upon it
- that you ensure there has been transparency of your financial positions to each other and that is all recorded in the document.
It is also important that the agreed document is fair and would realistically reflect the type of Order that a court might make upon the breakdown of the relationship. The agreement must not prejudice the reasonable requirements of any dependent children.
It is important to note that the Pre-Marital Agreement is simply one factor the court can take in to account – if the court feels it is unfair, they do not have to follow it. Often courts will give effect to the agreement if it is freely entered into by each party and they have both understood all the implications of entering into such agreement with the benefit of specialist legal advice.
Pre-Marital Agreements are becoming more common and it is vital that both parties seek legal advice before entering into such an agreement. The agreement can specify, for example, as to what should happen to a jointly run business, whether pensions should be shared and if there should be provision for maintenance. It cannot include any unlawful arrangements.
Whilst a Pre-Marital Agreement cannot be varied unless the parties themselves agree, it should be reviewed at intervals, If circumstances change after a marriage or civil partnership, a Post-Marital Agreement can be prepared. Again, whilst Post-Marital agreements are not binding, it is arguably more likely the terms will be upheld than those within a Pre-Marital agreement because there is no imminent wedding date to place the couple under any actual or perceived pressure. Post-Marital Agreements are often used to reaffirm the terms of the initial Pre-Marital Agreement.
If you are considering the benefit of entering into either of these agreements, it is important that you speak to one of our specialist family solicitors. Contact us on:
Exeter 01392 285000 Cullompton 01884 33818