The family structure has changed over the years and families are becoming far more diverse, making it even more desirable to structure financial commitments before marriage.
If a pre-nuptial agreement is prepared properly, both parties will have given full disclosure and received legal advice in which case it would be binding and upheld by the courts. It does, however, need to be reviewed from time to time to ensure it is effective and appropriate. It can be amended during the course of the marriage, by agreement.
For those families that wish to protect their wealth, pre-nuptial agreements and trusts are the way forward, particularly where couples are entering into their second or third marriages and wish for their property to pass to their children from previous relationships. Pre-nuptials can also serve as a means of protecting the wider and extended family, where family businesses share ownership. The same protection applies when property is being passed down a generation following divorce.
The pre-nuptial agreement can record those assets that are wholly external to the marriage so that they are treated differently by the courts.
If the parties do not enter into a pre-nuptial agreement, they can after the marriage, enter into a post nuptial agreement. The same principles apply in that there has to be full and frank disclosure with both parties having had the benefit of appropriate legal advice.
Nuptial agreements do not have statutory validity in court, however, if the agreement has been created by a solicitor and the following criteria is met, the court will try to abide by the agreement as much as possible. It is important to remember that the courts retain the right to ignore some or all of the agreement if they consider it to be unfair. The criteria is as follows:
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