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>>Pre-marital Contracts

A prenuptial (or premarital) contract is a written agreement made by a couple who intend to get married, which specifies the financial arrangements which would be made between them in the event that they divorced.

Prenuptial agreements are enforceable and therefore quite common in some Jurisdictions, such as the USA and some European countries. Under English Law, prenuptial agreements are not automatically enforceable by the Courts. Increasingly, the existence of a pre-marital agreement is one of the factors which will be taken into account by the Court, in any financial proceedings ancillary to the divorce, ('as part of all the circumstances'). This is particularly so in short marriages and where there are no children of the marriage. They are therefore of particular importance in later marriages or those where the couple does not intend to have children.

There are certain specified safeguards which the couple should adopt for the courts to place appropriate weight on the terms of a pre-nuptial agreement. One of the most important of these is that they should each have received independent legal advice before they entered into the agreement. This is particularly so where there is 'inequality of bargaining power', for instance in a marriage where one party is exceptionally wealthy.

An increasing number of couples are choosing to enter into prenuptial agreements. These couples want to clarify what would happen if they divorced. Often they wish to agree to exclude assets acquired before the marriage or those which are inherited. They feel that a prenuptial agreement is likely to minimise disagreement if they separate. This has proved to be the case quite often, but by no means always and recently there have been some notorious cases where the enforceability of a pre-nuptial agreement has been challenged in the English Courts. These challenges have met with varying degrees of success depending upon the circumstances of each particular case.

 

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