News and Insights
17 March 2021
Pick up any lifestyle magazine and there may well be a story about the latest pre-nuptial agreement, or ‘prenup’, between two celebrities.
The headlines are often all about ‘lifestyle clauses’ or ‘infidelity clauses’, such as the one between Justin Timberlake and Jessica Biel, where she would apparently be awarded $500,000 if he ever cheated on her.
For the most part, however, prenups are contracts taken out between two people before marriage (or civil partnership) that provide details of how the assets are divided if that marriage fails. They’re basically a way of protecting pre-wedlock assets and previous family commitments, such as children from an earlier marriage.
While prenups may be thought of as something only the rich and famous would take out, they can be very appropriate for more ‘ordinary’ people. So long as they can be drafted proportionately, they can be a cost-effective way to protect against protracted litigation in the (hopefully unlikely) event of a divorce.
If your situation falls into one of the below categories, a prenup may be something that you wish to seriously consider:
- I am thinking of getting married and want to protect my property in case it doesn’t work out.
- I am a divorcee/widow/er about to remarry and want to limit any potential claims on the assets I retained from my first marriage in case things go wrong.
- I am about to marry but worry that if things go wrong, we could end up in a costly and lengthy argument about “who gets what”.
- I am about to marry for the second time but want to protect my assets to ensure I have something to leave in my will to the children from my first marriage if my new relationship breaks down.
- I have assets and/or property that would be hard to split 50/50.
- I want to protect inherited money or assets.
- I want to safeguard substantial savings or expected future inheritance.
Why would I need a Pre-nuptial/Post-nuptial agreement?
With a recent report saying that the number of weddings in Jersey in 2020 dropped to their lowest level since 1944 and many couples reported to be putting their wedding date off until at least 2002 – there might never be a more opportune time for couples to consider a pre-nuptial agreement.
A “Prenup” can offer a certain amount of protection to both parties in the case of a relationship breakdown. Money can be an emotive subject in relationships, particularly when there are differences in attitudes towards spending. Agreements can be used to determine day to day accountability, such as how the mortgage/rent is paid. How bills or debts are paid, whether this will be through a joint bank account.
Individuals who are re-marrying may require a measure of certainty after having experienced a difficult divorce. Perhaps there are children from a previous marriage that need to be financial supported, there also may be a requirement now or in the future by inheritance provisions.
There may be complications of a 50/50 division of assets should the case arise. Business interests may be such that one party may need to ensure control is retained.
One party may have debt that needs consideration that could be dealt with by the incorporation of a “debt clause” in the agreement. On the other hand there may be inheritance that has been received or is expected requiring protection.
Personal property such as vehicles or household contents, if paid for jointly, in the event of a relationship split, can be decided on how they are divided. Consideration may be needed to determine what would happen to animals and pets.
Given the bespoke nature of a prenup, it is even possible to include provision for what should happen to frozen embryos, or what should happen in the event of one party’s adultery or, as recently reported, if one party releases any private information to the public such as “revenge porn”.
What is needed to make a valid prenup?
It is important to note that pre-marital agreements are not legally enforceable in Jersey. However when prepared by a qualified Advocate or solicitor to comply with Jersey law, they are more likely to be upheld by a court. This is as a result of a landmark UK decision in the case of Radmacher v. Granatino in October 2010. However, while Jersey courts recognise pre-nuptial agreements, they also still have the discretion to waive any pre- or post-nuptial agreement, especially if it’s deemed to be unfair to any children of the marriage.
Key issues required for validation:
- All assets are disclosed with inventories/financial statements being provided.
- The agreement is completely understood by both parties.
- The contract must be drawn up by a qualified lawyer.
- The couple must be independently legally advised.
- The agreement must demonstrate a certain amount of fairness, particularly if one of the parties is bringing substantially more to the marriage.
- There must be certainty that no undue pressure has been applied in the signing of the contract.
- It is recommended that an agreement is signed at least a month before the wedding day, as proof of intent and that a reasonable time for re-consideration has passed.
When considering the enforceability of a prenup, the Court will carefully consider things like:
- Did the party with the most to lose understand the nature of the prenuptial agreement?
- Did he/she have independent legal advice?
- Was he/she under pressure to sign?
- Was there full financial disclosure?
- Would an injustice be done if the prenuptial agreement were upheld especially in relation to any children?
Can I get a prenuptial agreement without a solicitor?
Many of the people we speak to ask whether they can prepare their own prenup, hoping to save money or make the process easier for themselves.
In our view this is a dangerous course of action. As it stands at the moment pre-nuptial agreements are not legally binding documents, but if you want any hope of having a court take account of the wishes expressed in a prenup you need to make sure the agreement is prepared in a very particular way and that as many potential legal loopholes are closed as possible.
Without the advice of a legal expert you could fall into several traps when preparing a prenup. Under what conditions would you want to review the agreement, for example? How will the prenup take account of any future significant financial changes in your partner’s position? What about if you have children and one of you gives up work to look after them? These and many more considerations need to be taken into account if you are to prepare a binding prenup.
So, if you’re considering a prenup, at the very least take advice from an expert family lawyer - whether you choose to have them prepare the agreement or not. Our advice is to be wary of purchasing templated self-completion pre-nuptial agreements - as they are unlikely to take account of your unique circumstances and achieve the result you want.
At Viberts we have a dedicated team of family lawyers who are available to assist you in a way that is not only discreet but will allow us to give you answers to many of your questions. The first half an hour of our initial meeting is free of charge and can give you guidance in terms of the next steps that you take.