Pre-Nuptial Agreements Part Three – Are pre-nuptial agreements legal?

But are they “legal”?

Thank you for getting to the third part of this blog. Having come this far, you’ve come to terms with: –

1. Why the Pre-Nuptial Agreement may not be as cheap as you’d hoped (typical of reputation of Lawyers – but hopefully the reason behind this is justifiable)
2. Now you’ve also grappled with the notion that a “simple” document can, on occasion, be a wholly inappropriate and unfair document. Typical – you simply wanted some good, simple news and now we’re asking the ultimate question: –
3. Are they actually “legal”?

Well, no Lawyer expects to maintain your concentration thus far by answering “yes and no”.

Why the hell can’t a Lawyer answer a straightforward question?

It might be easier to simply advise that you do get one because if the procedure is correctly followed, the contents of the Pre-Nuptial Agreement will also be followed in the event of a later dispute.

For goodness sake, isn’t this the same as saying “yes they’re enforceable” – well, perhaps to everybody else but not Lawyers. But for the sake of absolute clarity, that’s the position.

Now let’s move on – what is this procedure you speak of?

Well, in short order, by drafting a Pre-Nuptial Agreement you’re putting the Judges out of work (kind of). You’re doing their job for them and they won’t take kindly to that, unless you do it properly. That’s how the judiciaries see it anyway. Therefore, you need to drop the same procedure and safeguard that they would adopt if the case ever came before them without a Pre-Nuptial Agreement – basically, you’d make the same or a very similar decision to the one that they would make.

I hate to generalise, but if I may so please don’t leave everything until the last minute.

Specifically, avoid the following situation: –

“Hey honey, I know you love me, and I certainly love you and it’s not all about money.”

Reply: –

“Of course it’s not.”

“And the wedding car’s outside”

Reply: –

“Great, let’s go!”

“Not so fast – just sign along the dotted line.”

Humour aside, an alarming number of people do leave this extremely sensitive conversation to the last minute. The dialogue above is not entirely unrealistic.

Whatever both parties think the other thinks, discussions about Pre-Nuptial Agreements will become increasingly sensitive the closer you get to your wedding day. It’s the happiest day of your life, your in laws are as awkward as hell, it’s costing a fortune, and the stress is mounting. This is not a great setting in which to discuss what happens if you actually split up.

I’ll spare you all the general rules about this – give it at least 6 months. There’s a “truckload” of work, disclosure and procedure to undergo and let’s be honest, you’ll only take it out on each other and/or your respective Lawyers if everything is rushed at the last minute.

Secondly, we’ll trot out the expression “full and frank disclosure” like a mantra. Not only must there be full and frank disclosure of your respective financial positions, there must be seen to have been full and frank disclosure. Thus, it must have taken place so that both parties know the extent of the compromise to which they are actually making.

Thirdly, that full and frank disclosure needs to be “exhibited” (posh word for attached) to the document that you sign. If the document comes to be tested before the Courts, the best one might predict is that “recollections” may differ as to what procedure was employed. Put it beyond doubt. Where it’s beyond doubt, the Lawyers can’t then fill the void.

The Courts also expect both parties to have independent legal advice. If the matter was before the Court, chances are that they would have that said advice. The Courts believe that you are owed this right, so that you really appreciate what you are doing and are not just overwrought by the emotion of the moment, such that your free will is sapped.

In short, it means all the idealistic thoughts about marriage, you’ve got your wits about you and if you haven’t, your Lawyer had their wits about them on your behalf.

The Lawyers will advise how the settlement in the Pre-Nuptial Agreement differs from what would happen in the event of a divorce before the Court.

Then, the Lawyers actually sign a certificate attached to the document that says I have been given independent legal advice and thus, the matter is beyond doubt.

At that stage, you have come as close as conceivable (for the purpose of an article) to ensuring that you have a good, solid Pre-Nuptial Agreement that comes as close as possible to being followed by the Courts in the event of a later dispute – which probably won’t occur because you’re both confident and happy in your relationship, bolstered by the fact that you have a Pre-Nuptial Agreement in any event.

Oh, and depending on how long you want your Pre-Nup to last for, it’s always worth putting in a review clause in the case of certain significant changes in your life’s circumstances. You’ll be glad to hear that’s not going to be the subject of a further article because if you got this far, it’s time we had a chat.

We look forward to hearing from you.

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ABOUT NIGEL

Nigel C Winter is a partner in the Family Department of DMH Stallard solicitors, based in London and the South East of England. He has been practicing family law for over two decades, is a collaborative lawyer and a regular contributor to a wide variety of publications on Divorce and Family Law.

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