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February 6, 2012 Speech Box

Having practised Family Law in South Africa (where prenups are commonplace) for a number of years, I am quite comfortable with the idea of couples who are about to be married signing a prenup as part of their preparation for married life.

In England the attitude is somewhat different. For many years this type of agreement were frowned upon as being in bad taste – after all what kind of loving couple expecting to spend the rest of their lives together should be looking at how to divide the spoils if the marriage doesn’t work out?

The stark reality is that many marriages do not last. It makes sense for spouses to do the best they possibly can to safeguard their assets, especially for people who are older and marrying for a second or third time, independently wealthy, have children from a previous relationship or expect to inherit significant sums.

The question of whether this is even possible in England is a difficult one to answer and has been the subject matter of several high profile cases during the past few years. At present our courts are not bound by what the couple agree in a prenup but weight can be attached to it by the judge depending on the facts of each specific case.

It is important that you bear in mind the following guidelines if you want to give your prenup the best possible chance of influencing a decision on divorce:

  • Each of you must have independent and specialist legal advice on the proposed terms of agreement;
  • Each of you must give the other full disclosure of your financial circumstances;
  • The agreement should be negotiated and signed at least four weeks, but no later than 21 days, before the marriage;
  • The agreement should be entered into freely and there should be no particular pressure on either party

There are other considerations to bear in mind and it is important that the Family solicitor that you instruct is experienced and a specialist in Family Law.

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