Making a Will is one of the most important things you will do in your lifetime. It caters for far more than just who will benefit from your belongings (your estate).
A pre nuptial agreement, (‘pre-nup’) is a contract between two people who are planning to enter into marriage or civil partnership and it deals with the financial consequences in the event of their marriage or union ending.
Prenuptial agreements have historically not been considered legally valid in the United Kingdom. This is still generally the case, although a 2010 Supreme Court test case between the German heiress Katrin Radmacher and Nicolas Granatino,indicated that such agreements can “in the right case” have decisive weight in a divorce settlement.The Law Commission is due to consider whether a change should be made to the letter of the law, recognizing pre-nups in a more general way.
Entering into a prenuptial agreement, as unromantic as it might sound, can ultimately prove beneficial for both parties.
There are several reasons why more and more people enter into a prenuptial agreement.
This is a matter of some debate. Prenuptial agreements are essentially a legally binding and enforceable contract, so are likely to be upheld in the UK Courts as long as they are fairly drawn up. In the UK prenuptial agreements have been enforceable provided they are properly entered into and there is no overriding reason that would prevent the court from adopting the provisions of the agreement.
The courts in the UK have complete and total discretion to decide how to divide the assets of the marriage; the aim of the courts is to achieve fairness in any financial divorce settlement. UK courts have complete discretion in applying the terms of a prenuptial agreement and will only enforce it to the extent they consider that it is equitable to adopt the agreement in the specific circumstances of any given case.
Therefore UK courts are likely to adopt the provisions of prenuptial agreements provided that they would not lead to an unjust result. In other words, the courts will take into account the provisions of a prenuptial agreement when deciding a divorce settlement but the courts will not enforce it if they consider that such prenuptial agreement may lead to a result that is unfair or unjust.
In deciding what is fair the starting point for any UK Court is Section 25 of the Matrimonial Causes Act 1973. Section 25 sets out the guidelines that the British courts must apply in deciding who gets what in any divorce proceedings, even if a prenuptial agreement has been entered into before the marriage. However, the courts are increasingly likely to enforce the provisions of prenuptial agreements provided that they do not conflict with the Section 25 criteria and would not unfairly prejudice the parties or any child of the marriage or otherwise create an inequitable or unfair outcome.
The Supreme Court has firmly endorsed pre-nuptial and pre-registration agreements and even if they are not upheld in their entirety, they may have a strong influence on the financial provision the court may make on a divorce or civil partnership dissolution many years later.
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A will is a legal document where a person, names one or more persons to manage his or her affairs and estate. In “olden” times, a Will referred to property, and a Testament referred to personal property, hence the term now used “Last Will and Testament”.
If someone dies without making a will, they are said to have died “intestate”. If this happens, the law sets out who should deal with the deceased’s affairs and who should inherit their estate (property, personal possessions and money).
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