Considerations before making a pre or post nuptial agreements
- Each party must have the opportunity of obtaining separate and independent legal advice prior to the terms of the agreement being agreed and the agreement finalised. If one party chooses not to take independent legal advice then that does not mean that the agreement is likely to be unenforceable. It is vital however that each party is given the opportunity to seek such advice prior to entering into an agreement
- There should be a prior exchange of financial disclosure prior to the terms of the agreement being negotiated. At the very least schedules of each party’s financial circumstances should be attached to the document so that each party is aware of the extent of the other’s financial resources at the time the agreement is entered into
- Pre-nuptial agreements should be entered into 21 days at least prior to marriage. The longer of time prior to marriage in fact the better. If the agreement is entered into at the last minute then there is a risk that one party may claim duress/undue pressure and in that situation it is advisable to have a mirror post-nuptial agreement post marriage
- The agreements should contain provision for review for example on the birth of any children and ideally on a periodical basis
- The agreement must be fair – any agreement for instance which did not cater for the needs of any minor dependant children would almost certainly be deemed to be unenforceable certainly as to that aspect
Other considerations:
New wills may need to be executed to give effect to the terms of the pre or post nuptial agreements.
If assets are held in other jurisdictions then specialist tax advice may be required and legal opinion as to whether a separate marital agreement is needed in the country where assets are held in order to provide the best possible protection.