Pre and Postnuptials – Preparing for the unexpected03 Jun, 2020 - Divorce and Family | by Grosvenor Law
With lockdown being eased there will, in the foreseeable future, be a lifting of the current prohibition on weddings. Couples will, once again, be able to decide whether now is the time to make the ultimate commitment. Some relationships will not have survived the constraints imposed by lockdown but for those couples who have weathered the storm, they are more likely to feel that they have emerged stronger and that now is the time to formalise their relationship by marriage.
However, many such couples will still be wary of the uncertainty of recent times and those concerns will be reinforced by the volatility of the financial markets as well as the spectre of an economic recession which could last for many months or indeed years. Couples who have decided to get married, as well as those who are already married, have come to expect the unexpected when it comes to predicting the future and no matter how strong they feel their relationship currently is, many will wish to provide for the worst case scenario.
Although not currently binding under English Law, a Court is likely to give effect to a carefully drafted prenuptial or postnuptial agreement provided the Court considers its terms are fair, and certain preconditions have been complied with. These include full, frank and clear disclosure by both parties, and execution of a prenuptial agreement not less than 28 days before the marriage.
At Grosvenor Law we are committed to negotiating and delivering the most favourable terms for our clients in pre and postnuptial agreements so that they are in the strongest possible position in the event that their marriage does not last. We have expertise in acting in the most complex of cases.
Scenarios where pre and postnuptial agreements are frequently entered into include where:
- The wealth of the parties is unequal, or one of the parties has a significantly higher income than the other party;
- There are assets belonging to one party which he/she wishes to ring fence and avoid sharing with the other party;
- There are assets which are held offshore in complex structures;
- There are funds held in trust for one of the parties and/or future generations which are likely to produce significant benefits;
- There is a realistic expectation that one of the parties will receive substantial gifts or an inheritance from his/her family;
- There is an intention that family capital should be preserved for future generations;
- There are family businesses;
- The parties spend significant time living outside England and Wales, sometimes in multiple jurisdictions, and may be nationals of other countries.
Pre and postnuptial settlements should be tailor-made to suit each individual case and can last for the entire duration of the marriage or until the happening of a specified event such as the birth of a child. It is prudent to periodically review the terms of any pre or postnuptial settlement to assess whether it continues to represent the parties’ common intentions or whether there have been any unforeseen circumstances which necessitate changes to what was previously agreed.
We take a proactive and commercial approach when drafting these agreements. We always endeavour to reach a reasonable compromise while minimising the cost – both emotional and financial.
Occasionally, it is necessary to challenge the terms of an agreement where, on a divorce, it would be unfair to hold one of the parties to the terms of an agreement. In these cases we have a proven track record of fighting and winning cases for our clients through tough negotiation or, where necessary, through the court process.
Mark Fenton is a Partner at Grosvenor Law and Head of the firm’s Family Team, specialising in all aspects of family law and bringing with him a wealth of experience.
The contents of our blog posts do not constitute legal advice and are provided for general information purposes only