Dare I mention a pre-nup?

“It is in your moments of decision that your destiny is shaped” Tony Robbins

Making the decision to get married is an exciting time in your life, and a prenuptial agreement may not have featured as part of your wedding preparation plans.

However if either you or your partner have acquired substantial assets before your marriage, or are likely to during your marriage, or if you have responsibilities to former spouses and/ or children from previous relationships you should be thinking, or being advised by family members, trustees or fellow shareholders, to enter into an agreement so as to give peace of mind in the event that things do not work out as hoped. You may also wish to consider a pre-nuptial agreement if you are high profile and have concerns about confidentiality.

One of the main difficulties couples encounter when their relationship breaks down is the lack of certainty regarding how their assets should be divided on divorce. Whilst prenuptial agreements are not automatically binding, since the English Case of Radmacher v Granatino [2010] UKSC 42 a freely entered into pre-nuptial agreement can be relied upon by the English Court if a number of factors are met. Those factors are that the parties have disclosed their relevant financial circumstances, that they understand the implications of entering into the agreement, and are doing so without undue pressure. As long as these factors are met the English Court should give effect to the agreement unless in the circumstances it would not be fair to hold the parties to their agreement.

The Jersey Law Commission recommended that on the basis of safeguards being met there should be a presumption in favour of the terms of a marital agreement being binding. The unreported Jersey case of L v M [2017] JRC062A considered a pre-nuptial agreement but found in that case that the needs of the parties were not met by the agreement, and hence the court would exercise its discretion to achieve a fair settlement between the parties. It found it was not a case that met the Radmacher safeguarding factors.

When considering entering into an agreement we would recommend the following:-

  • Give yourself plenty of time – an agreement should be drawn up well in advance of the big day. Each of you will need to give full financial disclosure to the other and it can take time to negotiate an agreement that provides the safeguards that will make it enforceable.
  • Both of you should have the benefit of legal advice from a good family lawyer so that you fully understand the terms of the agreement, and to ensure that it is fair.

Whilst acknowledging that a pre-nuptial agreement may be a difficult subject to broach with your partner, think of it as an insurance policy, one you hope you will never need, but there to make things as painless as possible if they do.

For further help or information please call Claire Rigby for a confidential initial discussion.

01534 871212 or claire.rigby@oben.je

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