Prenuptial and postnuptial agreements
Deciding to get married is an exciting time in your life, and a prenuptial agreement may be the last thing on your mind. But more and more couples are deciding on this route to bring them peace of mind should the unthinkable happen.
Whether you decided to have an agreement or it is at the suggestion of family members, trustees or fellow shareholders, a pre-nuptial agreement (as with pre-civil partnership and post-nuptial agreements) can save a lot of stress, dispute and future legal costs should the relationship break down. We have enormous experience in the drafting and negotiation of these agreements, whether they are multi-jurisdictional in scope or relate just to one country.
Although these agreements are not yet legally binding in England, a Supreme Court ruling in 2010 saw the introduction of a presumption that family courts should hold spouses to a nuptial agreement (whether made before or after the marriage) if both parties understood the implications of entering into the agreement. The legal position is similar in Hong Kong.
We advise either the financially stronger party, or the intended spouse or civil partner, and we take great care to tailor our approach to individual circumstances. We have created pre-nups and post-nups for a range of different people from entrepreneurs thinking about their business interests, beneficiaries of family trusts and shareholders in family businesses, to high-profile celebrities wishing to protect their reputations. As with all our work, total discretion is paramount.
Where partners come from different countries, or own property or have other financial interests outside England, we work where appropriate with leading family lawyers in other jurisdictions known to us through our membership of the International Academy of Family Lawyers, and, as needs be, with our colleagues from other teams within Withers (for example where advice is required on tax and trusts, property or business matters).
Besides our enormous experience in the drafting of prenuptial agreements, we have also been involved in cases where such agreements have been tested in court. For example, the influential case of Crossley (2007) where the court decided in favor of our client in holding that the prenup was the magnetic factor in the case; and Z v Z (2011) in which the court upheld our client’s claim to give credence to a French premarital separate property agreement in limiting the divorce award to the other spouse’s needs rather than ordering an equal split of the assets. Brett Frankle acted for the husband in that case which involved two French citizens living in London.
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