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Bringing up the subject of a prenuptial agreement can be as daunting as popping the question, perhaps more so as it raises the issue that the marriage might not last.  But how should you react if you have been asked to sign an agreement?  What should you look out for in a draft agreement?

If you have been asked to sign a prenuptial agreement, there are a number of things to consider first.

Who is requesting and why?

Often it is the wealthier partner who is seeking a prenuptial agreement.  Perhaps they have been through a divorce or difficult separation before and do not want to repeat the experience or expense.  Maybe they have children from a previous relationship and wish to safeguard their inheritance.

On occasion, the less wealthy partner may also suggest a prenuptial agreement to provide assurance that the marriage is not just about money.

Sometimes, pressure may come from other family members especially if they plan to provide money, property, or business assets.  While it might feel like a lack of trust, your spouse’s family may be wary of a potential divorce that could result in the division of an important asset.  This can arise when the asset in question is a family business or farm, and where other family members depend on it for their own livelihood and therefore need reassurance.

Do you have independent legal advice?

You cannot be advised by your fiancé’s solicitor.  It is necessary for you both to be represented separately by two different lawyers in order to obtain independent legal advice.

Do you understand all the implications?

To obtain a prenuptial agreement, you must both provide details of any assets you presently own, and your income and liabilities.  Once these have all been disclosed, your lawyer will advise you on the assets to protect and the issues to be reflected in a prenuptial agreement.

If you think your fiancé has not disclosed everything, then you must advise your lawyer who will enquire about any missing assets or clarify if they are owned by someone else.  Failure to make a full and frank disclosure of assets could render any agreement void.

Are you comfortable with the draft agreement?

You will be advised on the potential alternative outcome if you decide not to enter a prenuptial agreement and later separate or get divorced.  Ultimately this may be your largest consideration as it will allow you to broadly compare what you could expect via court proceedings should you separate in the future, and what you can expect under this prenuptial agreement.

If there are clauses you feel uncomfortable with, then it is important they are discussed and renegotiated or clarified before you sign.  If you sign the agreement without doing so, you will risk being bound by those terms.

Timing

Ideally a prenuptial agreement should be entered into well before a wedding, and certainly before any invitations go out.  It is not fair on either of you to enter these types of discussions just before your big day.  Indeed, it could lead to sour feelings, or one of you feeling pressured to sign rather than risk calling off the wedding.

If a court later determines that one of you was unduly pressured, then this could render the agreement invalid.

The pros and cons

There are many advantages to having a prenuptial agreement.  First, it gives you both a clear idea of what will happen if the relationship breaks down.

This will reduce conflict and help you to remain amicable, which is important especially if there are children from the relationship.  Of course, the cost of a prenuptial agreement is significantly less than an acrimonious divorce.

It is not uncommon that a prenuptial agreement will advantage one person more than the other.  Typically, this is the person who comes in with more assets.  However, it is important to remember that while that may be the case at the outset, there can be protection for both parties in terms of future assets acquired or inherited.

There are few disadvantages in entering such an agreement, provided you do so having been properly informed of your entitlements and the implications and that the discussion involved in securing the agreement does not result in a loss of trust between the parties or make you feel as if you have been divorced before marrying!

Contact us

For further advice please contact one of our Family Law experts.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.