What should I do to have a valid and enforceable pre-marital agreement?
A: The current view is that we cannot guarantee that any Pre-Nuptial Agreement will be completely legally binding if there is a separation or divorce in the future. However, the general view amongst practitioners is that, in order to give the agreement the best chance of being upheld by a Court, the following points need to be borne in mind:
I. It is very important that neither you nor your partner feel pressured into entering into the agreement. Both of you must do it voluntarily and of your own freewill.
II. Both of you need to be separately and independently advised by a solicitor.
III. Both of you must disclose to each other your financial position – to include your assets, liabilities, pensions, income and financial circumstances generally. This disclosure will normally be exhibited to the agreement as a schedule. It is important that this disclosure is full, frank and honest. It does not, however, need to be enormously detailed.
IV. It is important that the agreement is entered into some time before the marriage takes place. Many people suggest at least 6 weeks before the wedding is the minimum.
V. The agreement should be fair. An agreement which is not, is unlikely to be upheld. To be fair, recognition will have to be given to changing the agreement as time goes by and circumstances change. What is a fair decision after a short marriage will not necessarily be fair after a marriage of many years, or if there is a child of the marriage. One option is therefore to specifically state in the Agreement that it will be reviewed on certain future events or, say, every 5 years.