Welcome to the second part of our two-part series, looking at wedding prenuptials.
In the first part (click here), we discussed why prenuptials aren’t just for the rich and famous, and why you may want a prenup.
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.
Viberts 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.