In Case They Don't Live Happily Ever After

In cases where there is family wealth to protect, the joy of the prospect of one of your children ‘tying the knot’ may be tempered by just a touch of trepidation, particularly if a large settlement of assets will be made on the happy couple.

In such circumstances, the use of a pre-nuptial agreement (‘pre-nup’) is likely to make a great deal of sense. Although such agreements are still rather a grey area legally speaking, in a leading case on the subject the judge most helpfully suggested a number of criteria which would assist the courts in deciding whether a pre-nup would be regarded as enforceable by the court.

The most important of these from the perspective of the parties to a pre-nup are:

• Does the spouse being asked to sign the pre-nup understand it?
• Have they been properly advised as to its terms?
• Was pressure exerted by their spouse to make them sign?
• Was there full disclosure of the relevant assets?
• Was pressure exerted by anyone else to make them sign?
• Was the agreement signed willingly?
• Did one spouse exploit a dominant position?
• Was the agreement entered into in the knowledge that there would be a child?
• Has any unforeseen circumstance arisen which would make enforcing the pre-nup unjust?
• Does the order preclude the payment of any periodical payment for maintenance of the spouse and if so, would it be unjust to hold the parties to that agreement?
• Are there grounds for believing that upholding the agreement would be unjust?

For a pre-nup to achieve the desired object, it must be properly drafted and put into place in the correct circumstances.