Pre-nuptial and post-nuptial agreements are common and carry more weight in England than ever before.
Pre-nuptial agreements are becoming more and more common in England and Wales and, following the decision of the English Supreme Court in the case of the German heiress Katrin Radmacher and her French husband Mr Granatino, many people now believe that pre-nuptial agreements are binding. But that is not quite true. Currently, the English Courts still retain jurisdiction with the result that Judges are able to alter or adjust pre-nuptial agreements in certain circumstances. This is why it is so important to draft pre-nuptial agreements carefully and to ensure that they are fair.
So what are “qualifying” marital agreements?
1) Both parties need to have full disclosure of the other parties financial circumstances.
2) Both parties need to have independent legal advice.
3) The agreement needs to be signed not later than 28 days before the wedding and
4) must be in the form of a deed.
5) The parties must sign a statement confirming that they are contracting out of the court’s jurisdiction.
Not strictly, though this is a common misconception following the Supreme Court’s decision in Radmacher v Granatino. The English courts retain the ability to depart from a prenuptial agreement in certain circumstances, particularly where it would leave one spouse with unmet needs. That said, a well drafted and fair agreement will usually carry significant weight and, in practice, is often followed by the courts.
The only difference is timing. A prenuptial agreement is signed before the wedding, while a postnuptial agreement is signed after the couple has married. Both aim to set out how finances would be dealt with in the event of separation or divorce, and the courts approach both in broadly the same way.
The courts look at whether both spouses entered into it freely, with a full understanding of its implications, and whether it produces a fair result. In practical terms, that means both parties should give full disclosure of their finances, each should have independent legal advice, the agreement should be signed well in advance of the wedding (at least 28 days is the widely accepted benchmark), and it should be drawn up as a formal deed.
The purpose is to avoid any suggestion that one spouse was pressured into signing at the last minute, when calling off the wedding would have been difficult or embarrassing. Signing well before the wedding shows that both parties had time to consider the terms properly and to take advice without undue pressure.
Yes. One solicitor cannot properly advise both spouses, because your interests are not the same. Each spouse having their own independent legal advice is one of the key factors the courts look at when deciding how much weight to give to the agreement, and skipping this step is one of the easiest ways to weaken it.
Typically, it sets out how existing assets, future earnings, inheritances, business interests and pensions would be treated on separation. It can ring fence pre marital wealth, protect family assets or inheritances, and set expectations about how wealth built up during the marriage should be shared. It can also make provision for any children of the relationship. What it cannot do is override the court’s ability to ensure both spouses’ reasonable needs are met.
Not automatically. A prenup that is fully binding under the law of the country where it was signed may still be reopened by an English court if divorce proceedings take place here. If there is any prospect of the couple living in or having a strong connection to England in the future, it is sensible to have the agreement reviewed under English law, or a mirror agreement prepared, so that it is more likely to be upheld here.
This is a very common reaction, and it is important not to sign anything under pressure. Take your own independent legal advice before agreeing to anything. A good solicitor can help you understand what the agreement really means for you, negotiate terms that are fair on both sides, and make sure your position and any future children are properly protected.
Yes. Circumstances change, and an agreement that made sense when you married may no longer be appropriate years later, for example after the birth of children, a career change or a significant inheritance. Couples can enter into a postnuptial agreement to update the position, or review and revise their existing agreement, as long as the same principles of disclosure, independent advice and fairness are followed.
G is a German national. F a Dutch national. They have a one year old daughter together. G looks after the baby whilst F works as a banker. They intend to reside in London for two to three years before moving to Asia or America – depending where F’s job takes them. F would like to have a pre-nuptial agreement before they marry to ensure what he earned prior to the marriage remains his. G does not mind that but wants to ensure that she participates in the wealth that G generates from the date they get married.
We drafted a pre-nuptial agreement for G that allowed F to keep his pre-marital assets. The agreement stated that whatever both parties earned from the date of the marriage should be shared equally between them. The agreement also ensured that G and the baby would be provided for in the event that the marriage would not last long very long.
Die Anwaltskanzlei Beyer Family Law Solicitors ist ausschließlich im Bereich des internationalen Scheidungs- und Familienrechts tätig.
Kerstin Beyer – Beyer Family Law Solicitors – Solicitor (England und Wales), Rechtsanwältin (Deutschland, nicht praktizierend), Summit House, 12 Red Lion Square, London WC1R 4QH. Zugelassen und beaufsichtigt durch die Solicitors Regulation Authority.
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