A pre-nuptial agreement is a formal written agreement, entered into ahead of the marriage of a couple, which establishes out what will manifest should their marriage be end in divorce. In the UK any couple thinking of marriage, or a same-sex couple thinking about a civil partnership under the Civil Partnership Act 2004 (UK), may choose a pre-nuptial agreement. An agreement which is put into after marriage isn't a pre-nuptial agreement and yet a post-nuptial agreement.
Enforceability: Until recently it's been the positioning of the UK courts to not have regard to pre-nuptial agreements when deciding divorce settlements. Rather financial orders are made with concern to the situations specified in section 25 of the Matrimonial Causes Act 1973 (UK) which firstly looks at the welfare of any children from the relationship, then a long list of factors evaluating the financial position of both parties. This has generally resulted in 50/50 rulings, leaving partners who went into a marriage with considerably more money than their partner financially impaired.
UK Courts have shifted out of this position incrementally with the case of K v K [2003] being the first time a pre-nuptial agreement was upheld. After that the legal court has upheld other agreements, however they are not even close to automatically enforceable. The overall status of the courts can be summed up as not enabling pre-nuptial agreements to result in an unfair result to divorce procedures, thus it is critical to have concern to the following components when creating. It is apparent from cases including Crossley v Crossley that courts can find pre-nuptial agreements to be unfair if one party has not had accessibility to third party legal advice, thus it is very important each party seek advice when drafting an agreement.
K v K revealed an absence of full disclosure by one party of their belongings as another factor courts will think about when determining whether or not to give result to an agreement's specifications. It seems like the perfect option is to attach a schedule to any agreement with a full list of both parties' property. Nevertheless it must be taken into account that in Radamacher v Granatino [2009] the fact that there had not been full disclosure by the wife was not fatal and the pre-nuptial agreement was upheld. When it comes to assets it is equally critical to keep in mind that UK courts will comprise overseas assets in their willpower so it's wise to contain these in any agreement.
K v K also demonstrates that hurrying into an agreement may be unfavourably seen as amounting to duress, it is important to allow enough time for proper creating and deliberation over an agreement before a union in order to demonstrate an activity of free will by each party. If this involves postponing the date of the wedding then it is likely to be worth taking into consideration so you are not confronted with non-enforcement when it comes to a divorce. Due to importance of acquiring a pre-nuptial right, and the fact that all individual cases will have distinct facts and conditions to take into account, it's always best to seek specialised legal counsel when composing a pre-nuptial agreement.
Enforceability: Until recently it's been the positioning of the UK courts to not have regard to pre-nuptial agreements when deciding divorce settlements. Rather financial orders are made with concern to the situations specified in section 25 of the Matrimonial Causes Act 1973 (UK) which firstly looks at the welfare of any children from the relationship, then a long list of factors evaluating the financial position of both parties. This has generally resulted in 50/50 rulings, leaving partners who went into a marriage with considerably more money than their partner financially impaired.
UK Courts have shifted out of this position incrementally with the case of K v K [2003] being the first time a pre-nuptial agreement was upheld. After that the legal court has upheld other agreements, however they are not even close to automatically enforceable. The overall status of the courts can be summed up as not enabling pre-nuptial agreements to result in an unfair result to divorce procedures, thus it is critical to have concern to the following components when creating. It is apparent from cases including Crossley v Crossley that courts can find pre-nuptial agreements to be unfair if one party has not had accessibility to third party legal advice, thus it is very important each party seek advice when drafting an agreement.
K v K revealed an absence of full disclosure by one party of their belongings as another factor courts will think about when determining whether or not to give result to an agreement's specifications. It seems like the perfect option is to attach a schedule to any agreement with a full list of both parties' property. Nevertheless it must be taken into account that in Radamacher v Granatino [2009] the fact that there had not been full disclosure by the wife was not fatal and the pre-nuptial agreement was upheld. When it comes to assets it is equally critical to keep in mind that UK courts will comprise overseas assets in their willpower so it's wise to contain these in any agreement.
K v K also demonstrates that hurrying into an agreement may be unfavourably seen as amounting to duress, it is important to allow enough time for proper creating and deliberation over an agreement before a union in order to demonstrate an activity of free will by each party. If this involves postponing the date of the wedding then it is likely to be worth taking into consideration so you are not confronted with non-enforcement when it comes to a divorce. Due to importance of acquiring a pre-nuptial right, and the fact that all individual cases will have distinct facts and conditions to take into account, it's always best to seek specialised legal counsel when composing a pre-nuptial agreement.
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