DEAL OF THE MONTH JUNE 2016
DEAL OF THE MONTH
Our team was happy to observe an unusually high number of weddings taking place in April and May this year. Many Russian ladies got married in the UK to English men as well as our Russian fellow countrymen. Not surprisingly, many of our clients came to us during that time asking for assistance with private matters: preparation of prenuptial and postnuptial agreements, wills, gift deeds and setup of trusts.
Postnuptial agreement acquired legal force in 2008 when in one of the court proceedings a judge reached the decision to enforce the terms of one of such agreements thus setting a precedent for subsequent decisions.
Judicial attitude towards prenuptial agreements was relatively uncertain for many years. However, in the last couple of years, English courts have been taking such agreements much more seriously and in the most cases have been treating them as the true and genuine intentions of married couples in relation to their assets, savings, property and even children.
One such prenuptial agreement that we recently prepared reminded us of the importance of thorough consideration, not only of the intentions of the parties but also of the language they speak. In this case our client was the future husband. Having carefully considered his wishes and intentions, we prepared a draft prenuptial agreement which included the following information:
- how the assets that were to be accumulated during the marriage and registered in the name of our client would be divided in the case of divorce;
- how the assets that were to be accumulated during the marriage and registered in both names of the spouses would be divided in the case of divorce;
- the right of our client to 100% possession of his assets which he accumulated prior to marrying;
- financial responsibilities both joint and individual, existing and potential, and their allocation prior and post marriage;
- responsibilities in relation to future children and even the wife’s dog.
The importance of the preparation of a clear and correctly drafted agreement which would be legally enforceable in the case of divorce cannot be overstated. It is important to remember that such a document in its essence restricts the rights of both parties to the agreement and sometimes even deprive of some of them. Both parties have to receive independent legal advice. In our case, we insisted that the future wife of our client should receive such advice and her lawyer would provide the confirmation that the consultation has taken place. Both parties, our client and his future wife, were Russian speakers. It is important to emphasise that if parties are not English native speakers, we strongly recommend translation of the agreement into their languages (in our case it was only Russian) and provision of independent legal advice also in the native language.
To conclude, we would like to stress that it is important to know what English courts are likely to consider when making a decision whether or not to enforce your prenuptial or postnuptial agreement. Precision of the terms and content, nationality and residency of both parties, confirmation of the receipt of independent legal advice and absence of any coercion are extremely important. Although the fairness of the drafted terms plays an important role, how the judge will see them remains purely subjective.