Ask The Legal Expert - Pre-nuptial Agreements
- AuthorPhilippa Buckland
My partner and I run a successful business and, after a decade of living together we have decided to tie the knot. Without being unromantic, we are keen to protect the business, and our staff who are like family, from disruption if we were to split. We would always want to run the business together, not to divide it up. Can we sign a legal agreement on this?
It is very wise to think ahead about potential legal complications in the event of a marriage breakdown. Some couples baulk at this, but making sound plans now about how to safeguard your livelihood will take away any unnecessary worry, so you can concentrate on your exciting wedding plans. Since you are employers, it is also a very responsible thing to do, to try to minimise any risks for your staff.
A pre-nuptial agreement can help you both in this instance. They aren’t just for Hollywood stars or tech-company millionaires. As long as the agreement you reach is fair to both parties, it can be used to help ring-fence the family business from potentially being dragged into divorce proceedings as a matrimonial asset.
A pre-nup is an agreement between the parties to an intended marriage that seeks to clearly regulate their financial affairs, in the event of a relationship breakdown.
These agreements are not yet formally binding in England and Wales. However, as long as certain key criteria are met, pre-nups are proving to be increasingly persuasive. It should be:
- Procedurally and substantively fair - it cannot be obviously unfair to your partner and it must cater for the needs of any future children
- Freely entered into and made by deed
- Made at least 28 days before the wedding and preferably far in advance of it
- Both parties must have received, at the time of the making of the agreement, full disclosure about the other party’s financial situation with each party’s assets and income schedules being annexed to the agreement
- Both parties must have received legal advice during the drafting of the agreement, usually with certificates signed by the parties’ respective lawyers being annexed to the agreement
This is a complex area of law so is vital to seek advice from an experienced family lawyer before drafting a pre-nuptial agreement, so you have the best chance of meeting the above criteria.
The question posed is based upon a hypothetical situation. Welsh is spoken in the JCP Solicitors Carmarthen office.