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A pre-nuptial agreement is useful to protect:
You can also enter into a post-nuptial agreement, which can offer the same protection. However, a post-nuptial agreement is entered into after marriage, rather than before.
To ensure that a pre-nuptial agreement is written accurately and protects the interests of both parties, it is crucial that independent legal advice is taken.
Pre and post-nuptial agreements are not legally binding. However, the family courts are increasingly respecting of the terms of an agreement where the following criteria have been met:
An agreement created during the marriage is usually called a post-nuptial agreement. These agreements can be entered into during the marriage and can seek to protect certain assets from claims by the other spouse in the event that the marriage was to break down.
They are useful in protecting inherited or business assets, especially used in conjunction with a restructure of company shares and the creation of a discretionary trust.
Post-nuptial agreements can also be useful to set out the assets of both parties and state how these will be divided in the event of a marriage breakdown, divorce, separation or death. This can provide clarity about finances and can be especially useful for high-net-worth couples.
The creation of a trust may protect a spouse’s family wealth to some extent from the family court. Our courts have a broad power to vary certain nuptial settlements and can take into account the existence of a trust as a “resource” of the spouse who benefits from the trust.
The trustees of a trust, whether the trust is based here or offshore, will need to take swift expert advice at an early stage to protect all the beneficiaries of the trust, and must be advised on the extent to which they must submit to the jurisdiction of the courts of England & Wales or whether the offshore jurisdiction which governs the trust provides the trustees with local protection. In the case of offshore trusts, it is important to obtain legal advice in this country and in the relevant overseas jurisdiction.
At Myerson, our Private Client and Family Law Specialists can advise spouses, settlors and trustees, (whether in this country or overseas), on their duties and responsibilities, and the extent to which the trust itself is vulnerable to attack upon divorce. The Private Client Team has extensive experience in drafting trusts to ensure that family wealth is given maximum protection, and in advising clients on the most tax-efficient way to protect their wealth.
If you are considering a Prenuptial Agreement and either you or your future spouse has a connection with another country, either as to assets, domicile, habitual residence, a specialist family lawyer should be instructed in each relevant country to advise you on the need for and the effect of such an agreement in that country. This is because the approach for the enforcement and validity of Prenuptial Agreements varies between countries.
A Prenuptial Agreement will usually include a jurisdiction clause to set out your domicile and habitual residence, together with your intentions as to the jurisdiction in which you would issue divorce or dissolution proceedings and where you intend the agreement to be enforceable.
Where there are international elements, Prenuptial Agreements may be drafted in each relevant jurisdiction and translated and notarised if necessary.
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Jane is a Partner and Head of the Family Law Team
Nichola is a Senior Associate in our Family Law department
Sarah is a Senior Associate in our Family Law department
Gabrielle is an Associate within the Family Department
Helen is a Trainee Solicitor in our Family department.
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