Pre Nuptial Agreements
What happens if we have a pre-nuptial agreement?
If you have a pre-nuptial agreement, then the court will look at that as one of the factors to take into account in deciding your divorce settlement. They are not necessarily foolproof.
Are pre-nuptial agreements binding?
Pre-nuptial agreements can be binding in this country in certain circumstances and they are; according to a case called K and K in England,if you have had legal advice about your pre-nup at least one month before your wedding, and it's fair, in other words, it's not an agreement that simply says you get nothing and they get everything, that wouldn't be fair. So if it's reasonably and fair and maybe it's a sliding scale of what you will get, depending on how many years you've been married. The court will decide whether it's fair or not and they can then take it into account. So if all those factors are present you have had legal advice and it's fair, it will be binding in the English court. The places where they're not binding are for example; if your entering into a first marriage and you go on to have five or six children and the pre-nup says what ever he or she brought into the marriage they keep and you will have nothing at all. They will not be binding because they fall down on the post that they're not fair.
Do I need a lawyer to write a pre-nuptial agreement?
I would advise that you should have a lawyer to draw up a pre-nutial agreement. Because it's a complex area of law, because most of them aren't binding, if you really are a wealthy person and you want to be able to rely on that pre-nup, you should get proper legal advice, and the way in which you get that advice is you go to see the lawyer, you put before them all of your assets and what you want in that pre-nup, and the other side would be entitled to know what your assets are and take their own legal advice. Without lawyers being involved your other partner could say "There was pressure brought to bear on me, I didn't understand it", and that may render it completely useless. So in order for you to be able to rely on a pre-nup you both need legal advice.
How do I protect myself from losing everything should I divorce?
There is very little you can do in England and Wales to prevent yourself from losing assets on divorce. There is very little that can be ring fenced in divorce proceeding. Some people try and put their assets into trust to try and avoid the impact to the divorce settlement. But even trusts now are being looked at very carefully by the divorce courts, and only very limited trusts will be safe against being looked at in divorce settlements.
