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Pre nups like Nigella’s can take the pain out of divorce settlements
High-speed divorce is back on the discussion boards following the breakdown of the marriage between art collector Charles Saatchi and celebrity chef Nigella Lawson, with the news that their divorce is expected within the month.
And whilst the pre-nup between Saatchi and Lawson looks set to shape the swift progress of their divorce through the courts, with neither making any claim on the other, it’s not just celebrities or the super-rich who can benefit from such agreements.
According to legal experts, the lesson is one that’s useful for everyone, particularly on remarriage, where there are children from a previous relationship or where anyone has a significant inheritance.
Until recently, pre-nuptial agreements setting out how property was to be divided in the event of a couple divorcing were regarded as void under English law because they were considered to be contrary to public policy. Since the Supreme Court ruling in the 2010 landmark case of Radmacher v Granatino, the Courts have looked more favourably on pre nuptial agreements if “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
The Courts are more likely to uphold prenuptial agreements if it appears fair and if both parties disclose all aspects of their financial situation at the time the agreement is entered into. It also needs to be clear that no pressure is exerted by one on the other to sign the agreement.
By setting out what each thought was reasonable at the time they got married, pre nuptial agreements can help couples avoid having to negotiate a settlement in difficult circumstances after the relationship breakdown or through the Courts with expensive and emotionally draining litigation.
“There has been a significant shift in the weight attached to prenuptial agreements giving support to the autonomy of the parties and the choices that they make. The existence of such an agreement properly entered into can result in a different award to one that would have been made without it. Where a couple think the best of each other and appreciate their respective financial needs, this is the time to agree what should happen in the event of divorce or separation. Without the benefit of a prenuptial agreement and when the relationship has broken down, in absence of a negotiated settlement; the parties are left to the often long drawn out and expensive litigation route”. explained family law expert and Arbitrator Olive McCarthy from Breeze & Wyles Solicitors LLP.
She added: “A pre-nuptial agreement may not always be appropriate for young couples without children because it is hard to forecast what the future holds for them, but for a couple entering into a second marriage, those with significant assets and with adult or nearly-adult children, the case for pre-nuptials is clearly compelling and frequently being requested almost as part of the preparation for the wedding.
“It may seem unromantic to discuss such matters in the flush of love and the prospect of a shared future, but this is when a couple wants to be fair to each other, marriage breakdown is difficult and upsetting enough without the prospect of having to argue about a settlement as well.”
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This is not legal advice; it is intended to provide information of general interest about current legal issues.