Why getting legal advice is important before engaging in a pre-nuptial agreement

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Article

06 May, 2020

A recent Manchester case, which was determined in January 2020, by His Honour Judge Booth, and reported on the 27th April has underlined the importance of obtaining independent and expert Family Legal Advice before entering into a pre-nuptial agreement.

In this particular case, the parties had a 6-year marriage, which was a second marriage for both of them. Both had children from their first marriages. Sensibly, both parties entered into a pre-nuptial agreement before marriage. Unfortunately, this pre-nuptial agreement was not prepared properly, in that there was no full and frank disclosure of the assets, neither party had any proper advice by independent Solicitors and, the agreement was entered into only 5-days before the marriage ceremony. It must be said that this was prepared outside the UK, where both parties were living at that time. In this particular case, therefore, the Judge concluded that there was no value in the pre-nuptial agreement.

Rather unusually, this resulted in the Wife being penalised, as the Husband had recently gone bankrupt. He had legal fees and debts, and clearly had needs. The Judge confirmed that he had a need for a roof over his head and need for modest income.

Due to the Husband's age he had no earning capacity, whilst the Wife was working and had a successful business. The parties did enjoy a comfortable standard of living throughout their marriage and ultimately the Judge decided that the Wife would have to pay to the Husband 60% of her pension, together with a lump sum of £270,000 and, of course, she had her own legal fees to discharge.

Had both parties obtained proper Family Advice before entering into the pre-nuptial agreement, then it may have been more possible to ensure that the Wife's position could have been protected. Of course, a pre-nuptial agreement is not the be all and end all, as the Matrimonial Causes Act assists the Court in crafting a solution to ensure that justice for the couple is dealt with appropriately.

The relatively small cost therefore of instructing Solicitors to prepare a pre-nuptial agreement could ultimately, save you thousands.

For more information contact Judith O'Brien in our Family/Divorce department via email or phone on 01772 220022. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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