Prenuptial agreementsWhat to include

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What to include in a prenuptial agreement

You need to think about what you are trying to achieve and why you want to have a prenuptial agreement. Here are some issues which could be dealt with in the prenup.

Ring fencing "Non-matrimonial" property:

(i.e. assets acquired before the marriage, or deriving from family trusts, or gifts or inheritances received before or during the marriage) to be excluded from the family pot and not shared out between the couple if the marriage breaks down

Separation of Assets:

a statement that the couple intend to keep their assets separate, both during the marriage and in the event of the breakdown of the marriage (this may apply to all their assets, or more usually only to "non-matrimonial" assets)

Stepped provision:

a statement that a lump sum will be paid by the economically stronger to the economically weaker partner which increases in line with the duration of the marriage and may also be index-linked to the RPI, so that the value is not eroded by inflation over time

How any Joint Assets are to be dealt with:

(for example money held in joint bank accounts or other jointly owned property) whether they will be divided equally, or in proportion to the financial contributions made to the purchase/acquisition of such property

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How to deal with any Debts or other Liabilities

incurred by either party before or during the marriage

Provision on Death

which should be at least as generous as what will happen on divorce. It will be necessary for both parties to make a will or new will because any existing will is revoked automatically by the marriage (unless made in contemplation of it)

Whether Spousal Maintenance is to be paid

if the marriage breaks down and, if so, for how long?

The Duration of the Agreement:

whether it is to last for the entire marriage or only for a fixed period of years, with a "Sunset Clause", stipulating that it will come to an end after a certain time, or in the event that there are children

Whether there should be a Review Clause

providing for a review of the agreement say, every five years and/or on the happening of specified "trigger" events (e.g. the birth/adoption of children, inability to work for medical reasons, involuntary redundancy, etc) in order to try and ensure that the agreement remains fair with the passage of time and in the event of changes of circumstances

Is Confidentiality particularly important?

If so, a provision can be included preventing the disclosure of information to the press or third parties (other than professional advisors)

A Jurisdiction Clause:

stipulating which country shall have jurisdiction in the event of a divorce (especially important for international or transnational couples)

If you are considering entering into a prenuptial agreement, we provide free initial legal advice by telephone or e-mail. We assess your requirements and provide initial advice about how a prenuptial agreement could work in your particular circumstances, at no cost to you and without any obligation for you to instruct us formally to act. If you do then decide to instruct us formally, we will invite you to attend a meeting. After that meeting, we will provide you with an estimate of what the cost of your prenuptial agreement is likely to be.

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