Pre-Nuptial Agreements - Q & As

Q. Can we both come and see the solicitor to get advice about a pre-nuptial agreement?

A. Yes. But the solicitor could only give you generic advice. The solicitor could not act for both of you. If the solicitor sees you both first and thereafter one of you chooses to use this solicitor, the solicitor may not be able to act if there is any conflict of interest. However if the solicitor has only given generic advice and the other party is happy for him/her to act then as long it is recorded in the agreement and the other party has been given a chance to obtain independent legal advice then this should be acceptable by a court.

Q. What will happen if we get divorced if we do not have a Pre-nuptial Agreement?

A.  The Court will determine the outcome of the financial aspects of your divorce, unless you are able to reach agreement between yourselves as to what should happen with the financial assets. After a long marriage which has produced substantial wealth it will be usual to divide the assets of the marriage equally, whether or not the economically weaker partner has made any financial contribution to the marriage. This is because the contributions of the homemaker/carer spouse are regarded as of equal value to the family as the contributions of the moneymaking spouse. If you do not want this to happen, you would have to try to persuade the court that it would be unfair to divide the assets equally. A pre-nuptial agreement will show that you intended otherwise.

Q. If Pre-nuptial Agreements are not legally enforceable; does it matter if I sign one? I am the economically weaker partner.

A. You should only sign a pre-nuptial agreement if you are prepared to accept the financial provision that is set out in the agreement. Although the Court might not uphold the agreement, in the event of a breakdown of the marriage, there will be a presumption that you intended to be bound by it and that it should be upheld. Moreover, the law could change, as The Law Commission has recommended that pre-nuptial agreements should become legally enforceable in the future, although any change in the law is unlikely to apply retrospectively to your Agreement.

Q. Can I change a prenuptial agreement once I have entered into it?

A. Any agreement can be changed if the parties to the agreement agree on what changes there should be.

Q. Can parties to a civil partnership / same-sex relationship have a pre-nuptial agreement?

A. Yes. Parties to a same-sex marriage can also enter into a pre-nuptial agreement for exactly the same reasons as any other marriage.

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