Interest in pre-nuptial agreements has steadily risen as individuals seek to protect family wealth, particularly in family businesses, or their own acquired wealth. On the face of it, this seems to be a wise precaution. However, there appears to be an increasingly growing knock-on effect in that up to 25% of engaged couples that seek legal advice related to drawing up a pre-nuptial agreement do not go ahead with the marriage. So it seems that the fact that an engaged couple shine a light on their worldly goods, particularly when one individual has a great deal more in the way of assets than their intended, it has the effect of focusing their minds on the relationship and may bring out issues that had remained hidden.
Should the assets be in different countries, that is obviously another factor to be considered and expert professional assistance is required to ensure that all the correct procedures and actions are followed to guarantee that there is adequate protection for the overseas assets.
The lawyers at Giambrone try to focus on fair and equitable arrangements in a pre-nuptial or post-nuptial agreement, which aim to protect a variety of factors. If there are children involved their interests are paramount; the acquired assets built up by an individual or the assets of a family or family business or where the wealth is expected to cascade through the generations may be protected by finding an acceptable solution for the disadvantaged person such as providing a property for the less advantaged person that wholly or in part reverts to the other partner at some stage when the perceived need no longer applies. Such an arrangement may be made to provide the children of a marriage with an acceptable place for them to stay when they visit the absent parent for access visits during the course of their minority. It may be that once the children reach adulthood and the need for a property suitable to accommodate access visits is no longer required, the property can be sold and a smaller property purchased with the remaining proceeds reverting to the other partner; or the individual can remain living in the property for the duration of their lifetime with the property reverting to the children on the death of the parent. Our lawyers will take different approaches depending on the couple, in some instances, the couple will want to sit around the table and thrash out an agreement; in other cases, they prefer the lawyers to undertake the negotiations and just present them with the agreement.
One of the reasons that couples decide not to go ahead with their wedding plans is that pre-nuptial agreements, whilst are considered by the court in a divorce and are persuasive, they are not enshrined in law and can be overturned if one party can demonstrate that the agreement is unfair. There has been considerable discussion as to whether pre-nuptial agreements should be enforceable. However, at the present time they are not but they are a clear indication of the couple's intentions at the time of the marriage. Post-nuptial agreements can be drafted throughout the marriage, particularly if other assets are acquired.
Pre-nuptial agreements are commonplace in some countries where they are not considered unromantic but a compelling demonstration that the less advantaged person is marrying for love and not for financial gain.
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