Prenuptial Agreements - Part 2 - What to Include
15 Sep 2016
Prenuptial Agreements- What to Include
Recently, Dee Popat, our BCME expert panel member and Head of Family Law Department at James Berry & Associates, gave us the lowdown on the situation regarding prenuptial agreements, including their advantages and disadvantages. Below, in part two of Dee’s expert post, she carefully explains some of the things that you may wish to consider if you are going down the prenup route, and how to ensure that your prenup can adapt and change, just as your married life will do. Further demystifying the often confusing world of prenups, we’re super pleased that Dee has put something so complicated into such understandable words. Enjoy!
Following on from my previous article on prenuptial agreements, you should be aware that such an agreement can be drawn up for you and your spouse to specifically cover matters which concern you individually. As the prenuptial agreement can cover nearly anything, this goes some way to allow you to feel at ease with regards to the contents. At James Berry & Associates, we are able to advise you on the issues that you may or may not want to include in your prenuptial agreement.
A starting point would be for you to list all your assets and belongings which you want to address in the agreement. For example, you may own a valuable family heirloom which you would wish to retain in the event of either a break down in the marriage or your death, so this could be mentioned in the agreement. Further, the agreement will allow you to specify your financial rights and responsibilities with your spouse. The nationality of you and your spouse is of importance as many countries have matrimonial regimes, in addition to the matters listed below. Matrimonial regimes are applied either by operation of law or by way of aprenuptial agreement. In Common law countries, the default and only matrimonial regime is separation of property. Countries which operate by a Civil Law jurisdiction have statutory default regimes whereby generally couples marry into some form of community of property by default. We will be able to advise you on these issues depending on your nationality.
With regards to your property/ assets, we can advise on issues such as:
♡ What would happen to any property that either of you brought into the marriage?
♡ Ensuring that your property/assets are not split against your wishes upon the breakdown of your marriage.
♡ If you own the family home in your sole name, what would happen to it ?
♡ What would happen to jointly owned assets including bank accounts/shares/policies etc?
♡ What would happen to any savings accumulated during the marriage ?
♡ If you receive an inheritance, what would happen to any property/assets (including any income that may be derived from these assets)?
♡ If you or your spouse have any pensions, how would they be split in the event of a divorce?
♡ If either of you have any debts, either in sole or joint names, how would they be dealt with?
♡ In the event of a breakdown of the marriage, what provisions, if any, should be put in place to pay or receive maintenance, including the level of maintenance and the duration of the same?
♡ When and why the prenuptial agreement should be reviewed; we can advise you on the types of triggering factors that can be considered for the prenuptial agreement to be reviewed, i.e., after five years, upon the birth of a child, upon a change of circumstance such as losing your job, becoming ill/disability, upon the acquisition of an asset, just to mention a few.
♡ When Wills should be put in place to protect your property/assets in the event of death.
Aside from the financial aspects, consideration for the family unit, including any children, should also be addressed. A prenuptial agreement cannot prejudice the interests of any children in the family. It is therefore important to build in provisions for a review of the agreement if and when you have children as stated above. The child/children’s needs should be considered and assessed at each relevant stage.
If you have children from a previous relationship, you should address them in the prenuptial agreement to ensure that they inherit your property/assets as per your wishes. You should be aware that in cases where the Court is involved and there is prenuptial agreement in place, the Court (in whichever country the litigation takes place) will look first at minor children to ensure that they have proper financial stability including a home to live in. If the prenuptial agreement is deemed to be unfair when it comes to the minor children involved, it may not be upheld by the Court. You should be aware that you/your spouse will not be able to contract out of giving financial support to or for a child/children.
The above are just some of the considerations that you need to think about in terms of the contents of your prenuptial agreement. Prior to your marriage, if you are thinking of entering in to a prenuptial agreement, remember that you should seek advice at least a few months before the date of the marriage to ensure that adequate legal advice is obtained. If an agreement is to be drawn up, ensure it is done so in sufficient time, i.e. ideally the marriage ceremony should take place at least 21 – 28 days following the signing of prenuptial agreement. If you require specific advice, please do get in touch with me.