Prenuptial Agreement – who, when and why

29-November-2010 Family Law By Simone Green

Prenuptial agreements have become more common and accepted in our society, yet many couples intending to marry feel they don’t need a prenup. But it is worth considering and below, we look at some of the key questions surrounding prenuptial agreements.
Yes a prenup is not for everyone, but they are appropriate for a wide variety of people and you may find it applies to your personal situation. Importantly a prenuptial agreement is a legally enforceable contract. It does require each party to receive independent legal advice. It is not a quick list of who owns what.

Who should have a prenuptial agreement?

A prenuptial agreement is not necessary for everybody, however there are some personal and family situations where it is a very wise decision. In fact for many couples it can raise and deal with important concerns. It can also put into perspective or reduce anxiety related to “what if” situations and the unknown.
Common reasons for considering a prenuptial agreement include:

  • Owning a successful business
  • You are wealthy
  • You have children from a previous marriage
  • If you have elderly parents
  • If you anticipate a sizeable inheritance
  • If you are in a professional school
  • If one party has sizeable debt
  • If you are pursuing a lucrative career
  • If you own stock, a home or retirement fund
  • Or if you want to avoid a costly divorce.

When should you consider a prenuptial agreement?

A marriage ceremony can be viewed as a contract where promises are made.  In the same way, a prenuptial agreement is a contract where promises are made in the event of a marriage breakdown.  The prenuptial agreement is best developed before the marriage, and is a legal process where both parties need time to join in discussion and come to agreement.  It is best for both parties to have legal representation as the contract is drawn up, to ensure that the prenuptial agreement is enforceable.

It is a contract based on trust, where there is full disclosure and a clear understanding by both parties of the way things will be if the marriage does breakdown.  The process does not need to involve conflict, but can provide a platform for open communication.

Why consider a prenuptial agreement?

Elderly parents, children from a previous marriage, assets and possessions can all be protected.

Fears of the unknown can be put to rest.  Vulnerabilities and strengths are understood.  A prenuptial agreement solves many serious problems before problems arise. A prenuptial is not an admission this relationship is likely to fail. Rather the discussion it generates can help unite a couple as they plan the future together.

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