Expert advice from Dee Popat: To Prenup or not to Prenup
Written by Dee Popat on July 20, 2016.
Tagged under: Australia, BCME, Courts, Dee Popat, Expert advice from Dee Popat: To Prenup or not to Prenup, Legal wedding advice, Prenup It, UAE, advise, engagement, prenuptial, requirements
Expert advice from Dee Popat: To Prenup or not to Prenup
It’s something that is a taboo amongst some couples and can even be so controversial that it can end an engagement. Prenuptial agreements have a reputation of being a sign of a lack of trust, or a belief that the marriage will one day end, before it has even begun. However, it’s not all doom and gloom, and thankfully Dee Popat, our BCME expert panel member and Head of Family Law Department at James Berry & Associates, is here to tell us why prenups can be important, and what their advantages and disadvantages can be.
Despite living in a world of high flying jobs, increasing wealth and equality of the sexes, some may still consider the idea of prenuptial agreements to be ‘unromantic’. However, it is important to discuss with your future life partner whether entering into a prenuptial agreement would be beneficial to you and your future family unit.
When people who live in different jurisdictions or are from different jurisdictions decide to marry, it is imperative that when considering entering into a prenuptial agreement, you seek specific advice in respect of the validity and implication of any such agreements in your home jurisdiction. For example, the English Courts may recognise prenuptial agreements as enforceable under English divorce law. The UK Courts have broad discretion as to how to order the division of finances and property on the dissolution of a marriage, and the Courts can take a prenuptial agreement into account as one of the factors affecting its decision on the division of the parties’ assets /wealth. The aim of the pre-nuptial agreement is to clarify what the parties intend to happen to their money, property and other assets if the marriage were to break down.
Another example is that prenuptial agreements may be enforceable in Australia; however, care should be taken to ensure that an agreement entered into outside Australia follows the provisions set out in the Australian Family Law Act, otherwise enforceability in Australia may be an issue. Some countries have different requirements – including registration of a prenuptial agreement with relevant authorities – and this makes it even more essential to take legal advice if you are considering entering into such an agreement.
In the United Arab Emirates, there are no specific laws regarding prenuptial agreements. Such an agreement would be viewed as a civil contract between two parties, not specifically relating to marriage and divorce. It is therefore important to take great care when drafting prenuptial agreements because if they have not been properly thought out or executed, it can lead to costly litigation. When drafting such an agreement, care should also be taken to ensure that the wording does not offend Sharia Law principles if you choose the UAE to have jurisdiction in the event of the break down of the marriage.
In order to ensure that the Court in any appropriate jurisdiction considers the agreement to be fair, the parties will need to set out their financial circumstances in full, taking independent legal advice on the agreement and its effects. The agreement should also be signed by the parties and witnessed.
As with all contracts/agreements, there will always be advantages and disadvantages but through a collaborative approach, we can advise you on the various advantages such as:
♡ The parties can avoid protracted arguments in the case of break down/divorce.
♡ The parties can agree the financial arrangements in advance i.e who is to pay for what.
♡ The parties can protect their business.
♡ If one of the parties has significant debts, the prenuptial agreement can protect the other from having to assume the obligations of the debt once married.
♡ Spousal support can be agreed for the duration of the marriage and following any break up.
There can also be various disadvantages which you will need to consider, such as:
♡ Starting a relationship with a contract that sets forth the particulars of what will happen upon divorce may implant a sense of lack of trust in the parties.
♡ The agreement may require you to give up your right to inherit from your future spouse’s estate when he or she dies.
♡ Following acceptance of a proposal to marry, a party may agree to terms that are not in their best interest because they are ‘too in love’ to be concerned with finances and what the future may hold.
Before entering into a prenuptial agreement, you should be aware that ideally the marriage ceremony should take place at least 21- 28 days following the signing of the agreement. If the prenuptial agreement is signed within this timespan, in the event of a dispute a Court may infer that the agreement was entered into under duress and render the agreement invalid. Here at James Berry & Associates, we are able to assist you through the process including relevant jurisdiction issues, advising you on the contents and helping you to negotiate a fair agreement.
In my next feature, I will be explaining possible considerations when entering into a prenuptial agreement and what should be included, as prenuptial agreements are not just limited to finances but can include other elements of a family unit and life, including children and a party’s ability to work .
As always, if you require any specific advice prior to your marriage, please do get in touch with me.