Tuesday, 12 Jul 2016

10 Frequently asked questions on……. Nuptial Agreement.

10 Frequently asked questions on……. Nuptial Agreement.

Our Skipton Solicitor Andrew Foulds provides us with the 10 most frequently asked questions around Nuptial Agreement.

1. What is a Nuptial Agreement?

A Nuptial Agreement is a document signed by you and your partner in contemplation of your marriage or civil partnership. Its purpose is to clarify how financial affairs should be distributed if the marriage should break down.

        2. When might a Nuptial Agreement be a practical option?

Whilst we would always suggest such an Agreement is considered, circumstances in which they are most commonly utilised are when one party to the marriage has assets which they wish to protect. These can include:-

–          Property
–          Inheritance
–          Shares
–          Business Interests

3. Pre-Nuptial or Post Nuptial Agreement?

This will depend on the point at which the couple wish to enter into such an agreement. If it is before the marriage, this would be a Pre-nuptial Agreement (pre-nup). It is vital to remember that a pre-nup must be signed at least 21 days before the date of marriage. The alternative is to enter into an agreement after the marriage by way of a Post-nuptial Agreement. Though not as common as a pre-nup, these usually take place if the couple have previously separated and are attempting reconciliation or in order to amend a pre-nup.

4. Will the Agreement be binding?

The starting point is no, due to the fact you cannot restrict or opt out of the Court’s powers to intervene. However, since the case of Radmacher in 2010, the Courts are now paying increasingly more attention to any such agreements.

5. Why might the Court set aside an Agreement?

When considering any matrimonial settlement, the Court’s starting point remains s.25 Matrimonial Causes Act 1973 and that both parties needs are taken into consideration. If under the terms of the Agreement the Court considers they are not and that the Agreement is prejudicially unfair, it may set aside the Agreement or the specific clauses which it deems to be unjust.

      6. If the Agreement’s not binding, why should I have one drafted?

The Matrimonial Causes Act also states the Court must take into account both parties’ conduct, i.e. their decision to enter into such an Agreement. Although the Court must ensure both parties’ needs are met, how this is interpreted may differ due to the Agreement and be considered as their basic needs only. The Agreement can also work as a deterrent as your spouse may be less inclined to pursue any further claims if the Agreement is in place.
 
 7. How must the Agreement be drafted so that its terms may be considered binding by the Court?

To ensure the best possible opportunity of the Court upholding any such Agreement, there are key principles that should be followed;

–          The Agreement be entered into voluntarily
–          Both parties to provide full financial disclosure
–          Both parties be fully aware of the terms of the Agreement and implications
–          The Agreement can still be considered to be fair
 
8. We’re not getting married, should we still consider entering into an Agreement?

Yes, particularly if there is property involved. These are often referred to as ‘Cohabitation Agreements’ and can set out the ownership of property. If you are unmarried, any claims are considered ‘civil’ as opposed to ‘family’ and usually occur by way of a Trust of Land dispute (“TOLATA”). TOLATA’s can be more difficult to commence and may have significant cost consequences. We would always recommend seeking legal advice if you intend to cohabit but have no intention to marry.
 
9.Can you advise both me and my partner on the Agreement?

No. Although the Agreement is made when you and your partner are in a relationship, its purpose is to deal with financial affairs at the time of separation. It is therefore deemed to be a contentious issue and as a result, both you and your partner should seek independent legal advice on its terms and implications.

        10. Does having the Agreement mean the marriage is bound to fail?
No – Whilst it is hoped that the terms of the Agreement will never have to be implemented, it is a fact that over a third of marriages in the UK end in divorce.  The Agreement should be seen as a way of assisting you in such unfortunate circumstances to ensure that divorce does not lead to costly litigation. The Agreement is a private document and its terms and existence can remain confidential between you and your partner.

If you have any further queries about Nuptial agreements or indeed any other Family Law matter then please contact our Family Lawyer Andrew Foulds on 01756 692 877 or email andrew.foulds@awbclaw.co.uk

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