This Prenuptial Agreement contains terms to be agreed by two parties prior to entering into civil partnership, to address the division of assets that should occur if the civil partnership is annulled or breaks down.
The outcome of divorce proceedings conducted in courts of law is based on factors specific to the parties before the court. Under Section 53(2) of the Law of Property Act 1925, judges will take into account whether it would be unfair for the courts to deprive a party to the marriage of interest in a land or other property to which they have a reasonable entitlement.
In other words, a court will not necessarily treat the terms of a prenuptial agreement as legally binding, but the agreement will certainly be taken into account. Moreover it does offer a couple the opportunity to set out in writing how they intend to divide their assets should their relationship come to an end and that, in turn, should make separation or divorce a less painful process than it might otherwise be.
As will be seen from the notes below (clause 6), it is important that each party obtains independent legal advice before signing the agreement, not only for their own good, but also because this is more likely to give the agreement credibility in the event of a later divorce. By using our document, legal fees should certainly be saved.
Dealing with the specific clauses:
This sets out certain capitalised words and phrases which are used in the Contract. As drafted, no definitions which need to be completed as “Separate property”, “Joint property” and “Matrimonial home” are defined.
2. EFFECTIVENESS OF AGREEMENT
In order to be effective, the two parties who enter into the pre-nuptial agreement must enter into a civil partnership. A timeframe of six months is specified in this clause, failing which the contract becomes unenforceable.
3. PROPERTY AND ASSETS
This is left partly for completion in a Schedule. From both parties' point of view, it is important to have a clearly written and well-defined scope of services so as to avoid argument as to what is the property of each party. This clause goes on to detail the way in which separate property, joint property and the matrimonial home will be dealt with following the break down or annulment of the civil partnership.
4. PAYMENTS AFTER DIVORCE OR SEPARATION
This clause is worded in the alternative, and makes provision for circumstances where, on the partnership breaking down or being annulled , neither party is required to make a payment to the other, as well as the contrary – monthly payments from one party to the other for an amount of time specified, with provision for child maintenance payments. Provision is made for recourse to the courts where parties are unable to amicably agree on payment terms.
5. CONSENT & WILLS
This clause requires the parties to bring their pre-nuptial agreement to the attention of the court, and include the terms of their pre-nuptial agreement in any relevant court order. Parties also confirm that each of their wills reflects the terms of the pre-nuptial agreement.
6. UNDERSTANDING AND LEGAL ADVICE
In this clause, each party confirms that he or she has taken independent legal advice prior to entering into the contract, enters into the contract voluntarily and agrees to honour its terms.
This requires both parties to keep the terms of the agreement confidential and not disclose them to third parties unless strictly necessary.
8. REVIEW OF AGREEMENT
This clause sets out the circumstances in which the parties will meet to review the terms of the agreement. Provision is made for reviewing the terms of the agreement when the life circumstances of either party changes (for example, an inability to work or birth of a child), or after the 5th anniversary of the marriage (these terms can, of course, be amended to suit the requirements of the parties concerned). Provision is made to vary the terms of the contract to reflect agreed changes.
In order to have legal effect, the contract must remain effective following the separation of the parties. This clause makes provision for the contract to survive the parties’ civil partnership.
This clause enables the remainder of the agreement to remain enforceable where a court varies or overturns any part of it.
11. LAW AND JURISDICTION
In particular where the parties to the contract are of different nationalities or resident in different countries, it is sensible to specify the governing law - i.e. the law of the country which will be referred to in interpreting the contract if a dispute arises which cannot be amicably resolved. The clause also requires each party to give consideration to a request from the other party to enter mediation proceedings.
For general guidance on preparing and signing contracts please see our notes at http://www.contractstore.com/signing_contracts