Sheffield Divorce Solicitors

A nuptial agreement is formal written document prepared either before marriage (a “pre-nuptial”) or after marriage (a “post-nuptial”). Nuptial agreements record people’s intentions in relation to a wide range of matters including the division of property, finances and personal belongings in the event of a future divorce. Nuptials can also be used to record intended care arrangements for children.

Clients often enter nuptial agreements to preserve or protect personal wealth and record their future wishes in relation to the separation of their financial resources if their marriage was to end.

If prepared and executed properly, nuptial agreements can save people thousands of pounds in legal costs and they may make it much easier for spouses to separate without conflict or litigation. This can also reduce some of the uncertainty, risk and stress associated with court proceedings. For this reason, many people look at nuptial agreements as a type of insurance policy.
Although nuptial agreements are not legally binding in England, they are much more likely to be upheld if:
• The agreement is fair and reasonable;
• Both parties have the opportunity to obtain legal advice;
• In the case of a pre-nuptial; that it is signed at least 28 days before the marriage (and as a general rule the earlier the better);
• That neither party was placed under duress or undue influence to enter the agreement; and
• That the agreement is supported by material financial disclosure.

The starting point in law is a presumption of equality. However, the court can depart from equality if the needs of one of the parties justifies this.

When considering what orders to make, the court will take into account certain statutory criteria set out in section 25 of the Matrimonial Causes Act 1973; with first consideration being given to the welfare of any minor children of the family. Other relevant considerations include the earning capacities of each party, their respective financial resources, the length of their marriage, the health of each party and any children of the marriage and the standard of living enjoyed by parties during their marriage.

Essentially, this will depend on the approach of the court and its assessment of the needs of the parties. Consequently, there can be some uncertainty for spouses on this issue and outcomes can vary depending on the particular background of a case.

Usually, capital resources which are not referable to spouses’ joint endeavours will be regarded as non-matrimonial and potentially be excluded from the sharing exercise. However, it is not always this straightforward. For example, if a non-matrimonial asset is “mixed” with other resources then it could fall into the pot and be taken into account by a court. An example of this happening in practice is where one party make an unequal contribution towards the purchase of a property which becomes the matrimonial home. Although the capital used to purchase the property might come from outside the marriage (e.g. by way of inheritance or gift) in practice the court has been very reluctant to disregard this from the sharing exercise. This is especially so for marriages of longer duration and, as is often the case in these situations, the court’s overriding concern will be the needs of the parties.

If you think that your spouse is hiding assets, early advice is important.

 Sometimes mischievous spouses may try to divest themselves of their assets, transfer property to third parties or divert income to other sources to depress their net worth. More commonly, they will simply underplay the value of financial resources that they have disclosed.

If a difficult spouse is unwilling to engage in financial disclosure on a voluntary basis then the first port of call is often an application to the court to compel their co-operation. If the spouse fails to provide disclosure then applications to enforce can be made. Alongside this, spouses that are in breach of court orders may find themselves on the wrong end of an adverse costs order.

If financial disclosure has been exchanged but there is reasonable cause to question this then there are a number of steps that can be taken. A questionnaire may need to be raised of the other persons disclosure and expert evidence may need to be obtained. A forensic accountant may also be needed to value business interests or an actuary’s assistance may be sought to assist with pension sharing orders.

Mediation is a form of dispute resolution that provides an alternative to court proceedings or arbitration. People who engage in mediation may feel they have more control over negotiations and this can be important and empowering. Mediation is not about attributing blame and the process is intended to help people look forward not back.

The mediator’s role is to set parameters for dialogue so that you and your former partner can negotiate in a controlled, safe environment. Your mediator should work with you both to help you identify what you want to achieve and help you work towards this. Before any joint meetings are arranged the mediator should meet you both independently for an initial assessment meeting. This meeting is used to explain the mediation process, identify your respective objectives and clarify what is important to each of you. The mediator will also use this meeting to assess whether they think mediation would be suitable and appropriate in your particular case. If mediation proceeds, one or more joint meetings will be arranged which are facilitated by the mediator.

Where agreement is reached through mediation this will be recorded in a formal document known as a “Memorandum of Understanding”. Once this has been prepared you should consider consulting your family lawyer for further advice and to explore the benefits of setting this out in a legally binding court order.