16 September 2013
Pre-Nuptial Agreements - do they have a Bale-out clause?
According to recent reports, professional footballer Gareth Bale has postponed his wedding day as fiancé Emma Rhys-Jones’ dad is held in jail over suspicion of £3 million global fraud.
Allegedly, the 48 year old is on remand in a US cell facing 40 charges of fraud and money laundering, forcing the couple to delay their wedding day in the hope that he is released from jail. With uncertainties such as this looming on the horizon for the couple, it may emphasise the need for a Pre-Nuptial Agreement.
With the prevalence of Divorce in today’s society and particularly amongst celebrities, the disparities of wealth in long term relationships can cause further issues and stress. Pre-Nuptial Agreements are a tool used to resolve any such issues arising in the case of a divorce. The formal agreement is entered into prior to marriage, and sets out who owns what at the time of the marriage and how the couple envisage that those assets should be divided in the event of separation.
There are various steps to be taken in order to increase the strength and validity of Pre-Nuptial Agreements, particularly in the case of the rich and famous. However, it must be noted that the case of Radmacher found that Pre-Nuptial Agreements are not legally binding; they are simply very persuasive and should be followed if the court thinks that they are realistic and fair. Lord Philips said the courts would still have the discretion to waive any Pre-Nuptial Agreement, particularly if it is unfair on any Children of the marriage.
When considering a Pre-Nuptial Agreement, one of the first steps to take is to seek independent legal advice from a specialist Family Lawyer who deals with Family and Personal Matters, in order to ensure that both parties understand the full implications of the contract. Secondly, there should be full financial disclosure of assets and income between the two parties, as it is of paramount importance that the couple have all of the information that is material to the decision made. Furthermore, the agreement must be entered into voluntarily by both parties, and so any allegations of duress or undue influence should be avoided. In terms of the agreement being upheld in court, it is imperative that the terms are realistic and fair. If a Pre-Nuptial is weighted too far in the favour of one party, it is unlikely that the court will uphold the agreement. Additionally, Pre-Nuptials must be executed well in advance of marriage in order to have any validity – this requirement is therefore imperative if the agreement is to have any enforceability on the parties. Finally, in order to encourage the success of the marriage, a Pre-Nuptial Agreement should provide for future changes; it is recommended that the contracts should only last until the birth of the first child of the family or up to 5 years.
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