Family, collaborative Law and Mediation

PRENUPTIAL AGREEMENTS And LIVING TOGETHER AGREEMENTS

PRE-NUPTIAL AGREEMENTS set out how a marrying couple wish to hold their assets, and what should happen to them in the future. Unfortunately couples do divorce and separate, and it can be helpful to know how you are to deal with your property and assets.

The Supreme Court in the case of Radmacher v Granatino has largely upheld the importance of these agreements (see our article section for more details)

Although there is currently no specific law to regulate such agreements, the courts have for sometime now recognised their existence and have taken them into account when looking at financial and property arrangements. The Supreme Court has endorsed the importance of such agreements, so that courts may take into account the parties’ wishes as set out in such agreements. It remains the courts discretion to do so depending upon the factors of each case. They are therefore one factor, although an important factor, amongst others in divorce proceedings, when making a decision on the division of the family assets.

The existence of a pre-nuptial agreement will be an advantage to you, as the court may find this document helpful and even a determining factor, in defining your assets, and in considering your financial position in the marriage.

Re-married, prior relationships, and were wealth are situations were pre-nuptial agreements may be helpful to you.

The costs of litigation may then be avoided or reduced.

Before entering into an Agreement your partner should seek independent legal advice; It is important that you both disclose fully your financial assets; each of you should understand the agreement; pressure should not be put on either of you to sign and each must be willing to sign; if you have children, or they are expected, then their rights must be recognised in the agreement; there must be reasonable provision made for the financially less dominant party. A pre-nuptial agreement should be concluded well before marriage takes place, to allow a period of reflection; Intervening events such as the birth of children, ill health, a change in financial circumstances or the passage of time, will all affect the weight that will be attached to your pre-nuptial agreement in court; it is advisable to regularly reviews your pre-nuptial agreement.

 

ENGAGED COUPLES

For those who are already engaged and/or have been cohabiting, a pre-nuptial agreement can be of assistance if the relationship breaks down. If you own your house as joint tenants and if a dispute arises as to who owns what share of the property, you may have to make an application to the court for a declaration as to the beneficial ownership of the property or an order for sale with the proceeds to be divided in a proportion the court determines. A pre-nuptial agreement can be helpful in determining how the house should be divided after a dispute, whether it should be sold or whether one of you should remain in the property and buy the other person out of their share. Alternatively and to safeguard yourself and partner it is advisable that you hold the property as tenants in common, as this stipulates the percentage of the property owned by you and your partner and may prevent a dispute.

Provision for children from a previous marriage

A pre-nuptial agreement can be helpful where you or your partner wish to avoid a 50/50 division of your assets on the breakdown of your marriage. You may wish to provide for children from a previous marriage and the pre-nuptial agreement can be drawn up accordingly.

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