What is a prenuptial agreement?

It is an agreement entered into in advance of a marriage (preferably at least 3 months prior to the wedding date to avoid suggestions of undue influence) which sets out the arrangements which the parties intend to make. It can outline arrangements for living together during the marriage but usually sets out the division of assets and income in the event that the marriage fails.

Who should consider entering into a pre-nuptial agreement?

Typically where one party to the marriage has a greater capital or income base than the other they may wish to protect their position in the event of a separation, as the spouse may have a claim on at least 50% of the available assets or more, if they can establish a need. Of course young engaged couples might also wish to ensure that they have a clear agreement for the future in case the statistics on divorce catch up with them; it might help them to avoid the potentially lengthy and expensive litigation which often accompanies divorce. 

For such an agreement to be effective it is important that both parties understand the real meaning of the agreement, that is, not only what they are entering into but what they are giving up by signing the agreement; for that reason it is important that each party is legally advised before signing the agreement.

Previously the accepted view was that as the court had to be guided by these issues the parties could not oust the jurisdiction of the court by settling their own arrangements in advance of the marriage.

More recently the courts have been prepared to use a provision which allows them to consider all the circumstances and in that context to take account of agreements which the parties had made between themselves; in addition to the matters referred to above.

How can we help?

At Neves we frequently draft nuptial agreements for our clients and advise on the effect of such agreements when a marriage fails. If you are thinking of marrying why not have a chat with a member of our family team who can advise you as to whether such an agreement will be right for you.