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Case Study – Finalising a Prenuptial Agreement

Walker Foster helped a couple to navigate the complexities of finalising a prenuptial agreement, securing a fair financial future for both parties, despite the challenging landscape of matrimonial law and some unexpected setbacks.

The Challenges

Our client sought advice regarding protecting shares he had acquired in his father’s business, which his father had built up during his lifetime and which he would, in due course, inherit. He had also purchased a property through an inheritance from an elderly aunt who had died. He was engaged to be married within the next six months. He and his fiancée both had good jobs and were planning a family, so he sought advice regarding the financial implications and responsibilities of his upcoming marriage.

As a businessman, this client was able to view his upcoming marriage not only romantically, with great excitement and anticipation for their future life together, but also practically, in terms of their financial commitment to one another and what this would entail should their relationship fail. It was evident, however, that this client loved his fiancée deeply and trusted her implicitly but, wearing his business head, was able to understand and appreciate the need for forward planning to give him and his fiancée security from the start.

The client obtained initial advice from Walker Foster as to the legal standing of a prenuptial agreement to weigh up the pros and cons of entering into one before deciding, with his fiancée, that this was the path they both wished to follow. This was important because, without his fiancée being on board with the plan, there could be no agreement. It was vital that he understood that the agreement had to be fair to him and his fiancée, and ensure that reasonable provision (generously interpreted with regard to their lifestyle) would be made for her and any children of the family in the short, medium and long term. It was also important to advise him from the start that the likelihood would be that when his fiancée took her own independent legal advice, she would be advised not to sign such an agreement.

How Walker Foster Helped

At Walker Foster, we recognise that no two matters are identical when it comes to family law, and that it is important for the solicitor to listen carefully to the client and to identify their personal objectives, while taking into consideration the dynamics of their relationship (whether that is with a spouse-to-be, or a soon-to-be ex-spouse). This enables the solicitor to tailor the advice to that client’s particular set of circumstances.

In this case, it was important to ensure from the first meeting that there was a high degree of trust and financial transparency between the couple, and a genuine desire from them both to draw up an agreement that was fair and would generously meet both parties’ needs going forward. This may be regarded by many as un-romantic, but it could be argued that starting the relationship with a financial plan provides security for both parties, brings peace of mind, and establishes trust and transparency from the start.

As prenuptial agreements are not yet legally binding in England through statute law, certain prerequisites would need to be met for such an agreement to be upheld by the court, as set out in a landmark case decided in the Supreme Court in 2010. Therefore, it was vital that all of those prerequisites be addressed. These included:

  • Ensuring that the agreement was finalised and signed by both parties, with the fiancée having obtained independent legal advice, at least 28 days before the date of the wedding.
  • Drafting a fair agreement that made reasonable and generous provision for the wife-to-be and any children of the family
  • Making sure there was no suggestion of duress, or that the marriage would not take place without it.

Finally, the client needed to be advised on the full range of powers open to the court in determining any future financial application upon the breakdown of the marriage. It was important to note that a prenuptial agreement does not currently oust the jurisdiction of the court to determine any such application fairly, but is a factor that the court will examine first and foremost in deciding whether to uphold it fully or in part, taking into consideration the circumstances of the parties at the time of the application.

Among the various statutory factors the court will consider (with or without a pre- or post-nuptial agreement) is the length of the marriage, and this includes any premarital cohabitation, which, if 'seamless', is added to the length of the marriage. This is a little-known fact, and important in the context of considering marriage and prenuptial agreements.

The Outcome

In this case, the parties sat down together and worked out what they regarded as fair and, with a little tweaking, the client was advised that the court would likely uphold this agreement in their circumstances. However, as predicted, when the fiancée obtained advice from an independent large city firm of solicitors, she was advised not to sign the agreement. She was also advised that the solicitor would not sign the certificate contained in the agreement to indicate that the fiancée had received advice, unless she signed a disclaimer and paid more than £3,000 for further detailed advice.

Regardless of this obstacle, the fiancée was satisfied that she had obtained legal advice, and so decided to sign the agreement in any event, providing a letter to be kept with the agreement indicating that she had obtained legal advice, and had decided to sign the agreement without the solicitor co-signing the certificate. Although the refusal to sign the certificate and the cost involved were not anticipated, the parties were able to agree on a practical solution which enabled the couple to fulfil their wishes without excessive additional expense.

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If you need help in relation to prenuptial agreements, cohabitee agreements, divorce and financial matters, or any other family law matter, get in contact with Walker Foster today.

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