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Pre-nuptial agreements, or ‘pre-nups’ as they are often referred to are agreements drawn up and entered into prior to a marriage, which in the event of divorce can protect assets that have been acquired by one party prior to the marriage. They can also preserve assets for children and could also set out the distribution of assets, debts, and income in the event of a divorce or dissolution. The civil partnership equivalent is a pre-partnership agreement.
Case law has acknowledged the usefulness and desirability of pre-nups or ‘pre-marital agreements’ and consequently pre-nuptial agreements now carry more weight than they ever have previously.
It is important to note that whilst the divorce court can still have the final say, it should always uphold the agreement if in all of the circumstances it is a fair agreement (when considering above all else the needs of any children) and that it was freely entered into by both parties who appreciated in full the implications of entering into the agreement.
Whether the Court will uphold the agreement or not in the event of divorce or dissolutionentirely depends upon the following factors:
- The quality of the agreement (i.e. how it was drafted and whether it was fair)
- That there was no duress (i.e. that one party did not threaten the other with stopping the marriage if the other did not sign)
- That both parties had independent legal advice
- That both parties were aware of each other’s financial circumstances
Consequently it is vital for anyone considering entering into a pre-nuptial agreement to ensure that they have the best representation to ensure that the pre-nup is as binding as possible in the event of divorce or dissolution.
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