Pre-nuptial Agreements are not necessarily just for the rich and famous. Increasingly normal couples are opting to take these out. Our Family Law Solicitors get asked this question a lot.
The primary principle of a Judge in any divorce proceedings is to ensure that the parties’ assets are distributed in a fair and reasonable manner. It is a common understanding that the term FAIR would apply to an equal split of the assets. However, there can be situations where it is in fact NOT fair for the matrimonial assets to be split equally and a diversion from the standard rule is required.
Such situations include when a couple have signed up to a binding pre-marital agreement. Both parties agree to the terms laid out in the agreement; whereby one is the benefiting party and the other is releasing her/his right to claim any share in the asset if the marriage is broken down.
Any couple due to getting married do need to address what they would like to happen should the marriage not last. How would they agree for the assets to be split? If they do not agree to an equal split then if both parties agree it is wise to have a pre-nuptial agreement drawn. This agreement is especially beneficial for those who have a long-standing business and would not like this to be subject to a split as part of the matrimonial assets.
The main question, after signing this agreement is whether or not this agreement will bear any weight in the eyes of the law. Following the interesting case of Radmacher v. Granatino whereby the existence of a pre-nuptial agreement was bought into question; the Judges now do put weight to this agreement when distributing assets to the parties.
Nevertheless, Judges that sit in the Family Courts have extensive discretion and are able to waive any prenuptial agreement made. They tend to do this in circumstances where a decision to agree to the pre- nuptial agreement would leave one party at such a disadvantage that could not reasonably be accepted. The Judges are specifically asked to consider the welfare of the children involved and would sway towards disapplying the pre-nuptial agreement if the children would be negatively affected.
It is common knowledge that a pre-nuptial agreement will carry more weight, if both parties prior to signing the agreement have taken independent legal advice. At Nayyars, our Family Law team are able to assist in drafting these agreements and advise on the consequences of signing such an agreement.