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Would a pre-nuptial agreement protect my assets on divorce?

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Before getting married you may wish to think about protecting your assets, should your marriage come to an end.  Signing a pre-nuptial agreement may be a good way to do that.

Pre-nuptial agreements, or pre-nups, are a written, formal agreement that both parties enter into before tying the knot and set out who gets what if the couple divorce.

Usually they are used to protect the wealthier party, to try and exclude assets from the ‘matrimonial pot’ when it comes to the court finalising a divorce settlement.

It is also a way of making sure that dependents or children are protected, as it can allocate assets or money directly to them.

Since 2010 and the case of Radmacher v Granatino, the Supreme Court has confirmed that pre-nuptial agreements will be binding in certain circumstances, but for them to be binding, the court must be satisfied that both parties entered into it voluntarily and were informed of its legal implications.

The court will not allow a pre-nuptial agreement to cause hardship to children. If it does not adequately provide for the needs of the children of the family, then the parties will not be bound by its terms.

It is, however, certainly possible to enter into a binding pre-nuptial agreement.  This area of family law is incredibly complex and so it is vital that both parties seek their own independent legal advice as soon as possible. If they don’t, the legal validity of the agreement could be challenged during divorce proceedings.

It is important that both parties are given the opportunity to seek their own independent legal advice and are not persuaded to enter into the agreement against their wishes. It is also desirable for there to be full disclosure of both party’s financial circumstances before the agreement is signed. Ideally, both parties should sign an agreement at least 21 days before the wedding.

All is not lost if you don’t manage to reach an agreement before the wedding, as it is also possible to enter into a post-nuptial agreement following your big day, which will have the same effect as a pre-nuptial agreement. As before though, if you wish to enter into such an agreement, you should seek the advice of a specialist family lawyer.

If you would like to discuss this or any other family law matter, please contact Damian Baron on 01772 258321, or at damian.baron@harrison-drury.com


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