Pre-nuptial Agreements – a sign of true love or a sign of cynicism?
Pre-nuptial and post-nuptial agreements enjoy far more awareness than previously seen. Such agreements are of particular interest to individuals involved in a family business, especially if the business has endured for several generations, where there is often a view that the present owners are more “custodians” for future generations rather than actual owners. Also, in families where considerable wealth has been built up over generations, very often originating from decades or even centuries past and there is an expectation that the family wealth will continuously cascade down the generations. A prenuptial agreement is an excellent way to provide protection against the potential for a short-lived marriage and an acrimonious divorce. Also, couples where their individual wealth is disproportionate, with one party holding significantly more assets than the other, often feel that a prenuptial agreement is useful for the same reason.
Should the assets be in different countries, that is obviously another factor to be considered and expert legal assistance is required to ensure that all the correct procedures and actions are followed to guarantee that there is adequate protection for the overseas assets in differing jurisdictions.
The lawyers at Legal Law Limited try to focus on fair and equitable arrangements when drafting a pre-nuptial or post-nuptial agreement, which aim to protect a variety of factors, not just the assets of the wealthy party. An agreement can cover a raft of issues such as properties, bank accounts and savings, pensions, business interests and matters relating to any children of the marriage.
In the event of a divorce and there are children involved, their interests are paramount and if the less advantaged individual has custody of a child or children of the marriage there is an expectation that they, the children, should not be disadvantaged by the separation of their parents and should enjoy the lifestyle and advantages that they would have experienced if the marriage had endured. Therefore it is highly likely that a pre-nuptial agreement will be varied by the court to reflect the provision of satisfactory requirements of the children. If the financially weaker party does not have custody of any child or children there will still be considerations that are aimed at the children, such as providing a property where there are adequate facilities to enable the child to visit the absent parent during the course of their minority. There could be an arrangement whereby once the need for access visits is no longer appropriate the larger property could be sold and a smaller property purchased with the remaining proceeds reverting to the other party or the right to live in the property extends for the duration of the lifetime of the custodial parent and then reverts to the other parent or the child or children.
The lawyers in the Legal Law Limited family team take different approaches depending on the couple, in some instances, the couple will want to sit around the table and thrash out a pre-nuptial agreement; in other cases, they prefer the lawyers to undertake the negotiations and just present them with the agreement. Pre-nuptial agreements are not yet enforceable by law but are considered very persuasive as they shine a light on the couple’s thinking and intentions at the time of drafting. Fairness is the fundamental platform for a prenuptial agreement and an agreement that is not perceived to be fair will be overturned by the court.
The perception of pre-nuptial agreements being a cynical device aimed at depriving the financially weaker party of their slice of the family wealth, as they are sometimes perceived, is not shared in other parts of the world where prenuptial agreements are commonplace and regarded as a convincing demonstration that the less advantaged person is marrying for love and not for financial gain.