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Prenups are for the rich only say Judges

A recent article in the National Press referred to the report  given by the Family Justice Council confirming the Judges view is that “for most people prenups will not be relevant on divorce”.

The Family Justice Council quite correctly said that in the majority of cases “meeting needs is the central factor of divorce”. Even the much trumpeted recent case law has confirmed that whilst people should be held to their bargains, the Court will interfere if an  agreement is manifestly unfair and fails to meet the parties needs. Quite what the definition of their needs might be will vary from case to case of course. Prenuptial Agreements will be a feature of the case and it should be noted that even when the Court have interfered with the terms of the agreement, it has still been used as a starting point even where it was not felt to appropriately deal with the parties needs. The financially weaker person has received less than might otherwise have been the case without such agreement existing at all. They do therefore still have an important role.

Judges are always going to put the needs of children first and there is established case law that a prenuptial agreement is really only a “magnetic factor” for a short, childless marriage.

However, a prenup will always be of use in the most ordinary of cases where a spouse hopes to keep a specific item of personal sentimental value such as a family heirloom, pet or vehicle. Prenups are also an excellent simple instrument whereby a husband and wife can protect assets they both brought into a marriage. The Judges were mostly commenting on a case where the position is very unbalanced with one party having all the assets and money and the other having very little.

There are the usual caveats to prenups in that parties must have entered into it voluntarily without undue pressure and to this end it is recommended a prenup is executed not less than 28 days before the date of marriage. The person should understand what it is and it is important there is the opportunity to seek independent legal advice as evidence the parties understood what they were agreeing to even if it will not be exactly followed due to the circumstances existing at the point of divorce.

A prenup ideally will protect any surplus after needs have been met. I have mentioned the definition of “needs”is a wide one and which will to a significant extent reflect the lifestyle enjoyed during the marriage.  

If you would like to speak to someone about prenuptial agreements or would like some more information on the family law services we provide at Clough & Willis, please phone Lee or Marie on 0800 083 0815 or 0161 764 5266.

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