Pre-nuptial Agreements - Can you choose your own divorce deal?

By John Todd Specialist Family and Litigation Solicitor, AMD Solicitors.

It is perhaps not surprising that the numbers of couples trying to determine their own financial deal on divorce are increasing.  Entering a marriage at the risk of losing part of an inheritance or wealth built up over years of hard work, may be too big a risk to take.  Or, particularly where one or both of the couple have been married before, the thought of facing a potentially acrimonious and protracted dispute, and of the uncertainty over the eventual outcome, may be too daunting or distressing to contemplate. In these circumstances, it may be sensible to consider and take advice upon drawing up a pre-nuptial agreement. 

What is a pre-nuptial agreement?

A pre-nuptial agreement is a written document drawn up prior to the marriage which sets out the agreement the couple have reached as to how their finances will be divided in the event that the marriage breaks down. 

A pre-nuptial agreement is not strictly binding upon the courts, since a judge will always have the final say in deciding how the finances should be divided.  However the terms are very likely to be followed by a judge when deciding upon the terms of the financial settlement, particularly after a short or childless marriage.

The courts are increasingly in favour of allowing the parties to determine the outcome of a failed marriage in this way.  It is arguable that terms the parties have themselves chosen and, at one stage at least, considered to be fair, are likely to cause less bitterness and frustration then terms which have been imposed by a third party.

Will the agreement be upheld?

To have the best chance of being upheld, a pre-nuptial contract should be entered into by each side without undue pressure having been placed upon them, ideally at least several weeks before the wedding. Each party should have received independent legal advice from a specialist Solicitor. Each side should have a full understanding of their partner’s financial position. This will involve a financial summary being prepared and documents in support being produced.

Including arrangements for the children in the agreement should be avoided since judges prefer to make decisions about children at the relevant time, based upon what is in their best interests.

The financially weaker party should, at the very least, have his or her essential needs for housing and income met by the terms of the agreement.  It should not, to an impartial observer, appear to be unfair.

In Conclusion as the courts move increasingly towards allowing couples the financial autonomy to determine their own financial settlement on a divorce, the chances of the terms of a pre-nuptial agreement being followed grow ever stronger.  Even if the terms of the settlement are not followed in their entirety, they are likely to have a significant impact upon the final financial settlement.

AMD have offices in Clifton, Henleaze and Shirehampton .For advice on pre-nuptial agreements and all Family Law issues contact AMD’s team of specialist Family Solicitors on 0117 9621205, or email info@amdsolicitors.com.

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