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Stephen Gold: Both parties must freely enter into the prenuptial agreement. Gun to the head. Coercion. Misrepresentation. Any one of them will throw it in the courtroom dumpster.
Stephen Gold is a retired judge and author who has written popular series for This is Money about how to be a successful executor, write a will, bankruptcy, consumer rights and legal disputes.
In his latest guide, he explained the basic rules for how finances are divided in a divorce; He then analyzed the distribution of pensions, late claims for money, remarriages and taxes; finally covered hiding assets from his ex-spouse.
Today, he turns to prenuptial agreements for his latest installment.
‘I love you BUT…’ You may have heard of prenuptial agreements.
They are generally called “prenuptials” to save space and ink.
This is where, before a marriage or civil partnership, the parties agree what the financial arrangements should be between them, should the relationship break down.
One of them may be more interested than the other in reaching such an agreement. Of course, there are special situations in which an agreement is favored if it is not insisted upon.
A couple in the late summer or fall of their lives who have children may be desperate to preserve a considerable portion of their assets when they pass away.
Or perhaps one partner has already been bitten in a previous relationship and is twice shy.
They could also give legal certainty to high-net-worth couples. Catherine Zeta-Jones and Elizabeth Taylor did it. Prince William and Guy Ritchie did not.
But ‘I love you with all my heart and soul.’ However, let me make it clear, the deal is off if you refuse to sign on the dotted line; It’s a big bet.
It might well prompt an invitation to ride a bike and travel into oblivion.
The results of a national YouGov survey may surprise you. Around 35 per cent of Brits said they would enter into a prenuptial agreement if asked.
The most favorable were between 25 and 39 years old; those least likely to be in favor were those over 60 years old. In fact, the number of agreements between married couples could be as high as 20 percent.
Prenuptial agreements are enshrined in the law of many European countries, but not in England and Wales. This despite the fact that the Law Commission included them in a report published in… 2014!
Plan ahead: Younger people are more likely to agree to a prenup than older generations
Don’t worry, my prenuptialists among you.
If an agreement is reached, the relationship breaks down and, in the event of divorce or other matrimonial proceedings, the agreement is challenged by one of the parties – and this is certainly not an uncommon occurrence – the court will give effect to it, but as long as be fair to do so.
It follows that, as the law currently stands, an agreement is not airtight, although there is a good chance that it will win the court’s approval in a challenge if certain basic rules are followed.
Basic prenuptial rules
1. The prenuptial agreement must be freely entered into by both parties with full knowledge of its implications.
Gun to the head. Coercion. Misrepresentation. Any one of them will throw it in the courtroom dumpster.
Undue pressure would almost certainly be fatal: “I know we’re booked for tomorrow, 500 guests are coming, including Christopher Biggins, and Taylor Swift is performing at the cabaret, but if you don’t sign here, it’s all off.”
The emotional state of one of the parties will be relevant, the pressures they suffered to reach an agreement, their age and maturity and whether they were previously married or had a civil or long-term relationship.
2. There must have been full and honest disclosure by each party to the other of their financial circumstances.
3. The prenuptial agreement cannot be allowed to prejudice the reasonable requirements of the children of the relationship, born or unborn, or who are treated as children of the family.
4. To ensure that the implications of the prenuptial agreement are considered, each party should obtain independent legal advice before committing to it.
have an agreement with me
My book contains a prenuptial model that should be adapted to the circumstances of each relationship. Here is a sample laying out the background of what is happening. Enjoy.
THIS DEED was made on 6 May 2024 BETWEEN CLIVE TROUBLESORE (‘Mr Troublesore’) and MAVIS BULWRK (‘Ms Bulwark’) (together called ‘the couple’), both of 149 Magnolia Crescent Twickenham Middlesex KT89 4XZ
BACKGROUND
1. The spouses intend to marry no later than July 31, 2024.
2. The couple has the sincerest hope and expectation that their marriage will last throughout their life together, but has decided, after careful consideration and with the benefit of the legal advice mentioned below, to enter into this agreement with the desire to that its provisions are complied with. They will govern your financial affairs in the unfortunate event that the marriage breaks down and is subject to a final divorce decree, annulment decree or separation decree in favor of one or both.
3. It would be anathema for the couple to face the potentially high costs and, in particular, the unpleasantness of a contested financial procedure after the breakdown of the marriage.
It is a comfort for the couple to know in advance, although without absolute certainty, how they would be financially after the breakup of their marriage and they perceive that this is one of the many advantages of this agreement.
While they recognize that this agreement cannot prevent a court from reviewing it and that the court’s discretion to depart from its terms, in whole or in part, cannot be excluded, it is the couple’s strong desire to have it confirmed in its entirety by the court. .
4. The couple has no doubt that it is and will continue to be fair to both of them and to the children of the family that this agreement governs their financial affairs in the event that the marriage breaks down.
This conclusion is based on all relevant circumstances, including the disclosure of their current financial circumstances, as mentioned below, and the legal advice they have obtained, also mentioned below.
5. The couple agrees that the other has acted honorably in intending this agreement and in his or her conduct prior to this agreement and is satisfied that its terms not only satisfy the legal test of fairness but are morally just and correct.
6. The couple acknowledges that neither of them has been pressured by the other or anyone else to enter into this agreement and that, for example, neither of them has threatened by themselves or anyone on their behalf not to proceed. with the marriage if this agreement was not made.
Retired judge and writer Stephen Gold
The Return of Breaking Law, by former judge Stephen Gold, published by Bath Publishing, is an irreverent guide to legal rights and how to win or lose in court.
It provides more information on the topics covered in this series of articles and is packed with tips and templates.
Among the many other areas presented are the rights of cohabitants, how to succeed in small claims, making a will, fighting with sellers, creditors, domestic abusers, lenders and landlords, and how Stephen coped as a property lawyer. The Kray Twins.
7. Each of the spouses received legal advice on the draft of this agreement (which was on exactly the same terms as the agreement itself).
The advice was in simple English that each of them understood perfectly.
Advice was given to each of them independently of the other and was given to Mr Troublesore by Mr Freeman Hardy-Willis of Speakeasy, Solicitors of Twickenham and to Ms Bulwark by Ms Amelia Doughty-Fighter of Clientscrew Law, Solicitors of Richmond -upon- Thames.
8. Mr. Troublesore represents that (a) he owns or has any specified interest in the capital assets set forth in Part 1 of the schedule to this agreement; (b) he has done what is reasonably possible to provide an approximate figure for the open market value of these capital assets when their actual value cannot be easily quantified; (c) he is satisfied that all values are reasonably accurate; and (d) you are entitled to the income detailed in Part 2 of the schedule to this agreement.
9. Ms. Bulwark represents that (a) she owns or has any specified interest in the capital assets set forth in Part 3 of the schedule to this agreement; (b) she has done what is reasonably possible to provide an approximate figure for the open market value of these capital assets when their actual value cannot be easily quantified; (c) she is satisfied that all values are reasonably accurate; and (d) she is entitled to the income detailed in Part 4 of the schedule to this agreement.
10. The couple accepts and agrees that the terms of this agreement cannot and will not affect the rights of any child of the couple or treated as a child of the couple on the date of marriage or who will thereafter be born to the couple. or become a child of the family and that the jurisdiction of the courts to order provision for said child is preserved and will not be superseded or affected in any way by the terms of this deed and the couple further accepts and agrees that the birth of any child or the fact that a child comes to be treated as a child of the family is not intended to be a circumstance justifying Mrs Bulwark’s entitlement to any financial or other provision from Mr Troublesore in addition to what set out in Part 5 of the annex to this agreement is hereinafter referred to.
The model goes on to detail what Ms Bulwark gets in lump sum and maintenance if the marriage fails, respectively, within two years, two to six years and after six years.
The longer the marriage, the greater the financial reward. If there is at least one child, the lump sum increases progressively.
If either party has debts or other liabilities then this should be included in the agreement.
Postscript
Hopefully, nothing I’ve written here has dissuaded you from the idea of marriage or civil union.
However, you should know that some fees for local registration services will increase on May 28, 2024, by 10 percent in most cases.
These include fees for giving notice of marriage or forming a partnership or for a registrar to attend the ceremony. Just mention.
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