In a series of ‘Frequently Asked Questions’, we will be tackling the common questions relating to divorce, cohabitation, prenuptial agreements and care of children. Contrary to popular belief, prenuptial agreements are not just for the rich and famous, they help to protect anyone and everyone should a marriage breakdown. It may seem negative to begin a marriage this way, but in reality it protects you both in the future.
A marriage automatically entitles a spouse on the breakdown of a marriage to make a financial claim against the other. This entitlement remains until dismissed. Therefore all assets and liabilities can be divided between the parties depending on the circumstances of the particular case. The starting point is a fair settlement. Therefore you might not be entitled to retain all your savings, or all your pension on a divorce.
In short, no! A prenup should be considered on any marriage where either one or both parties have assets. For example on a second marriage, both parties may have divorce settlements from their previous marriage that they wish to ensure they retain should this marriage break down for any reason. It might also be appropriate to have a prenup if one party has inherited family assets, and they want to protect those assets in the future should the marriage fail. A prenup is indicative of the parties’ intentions at the beginning of the marriage. It is important that both parties have their own legal advice and rules are followed in relation to the preparation of the prenup to ensure that the court would adopt the terms of the prenup on any breakdown. If the rules are not followed, the prenup is unlikely to be upheld by the court. In certain circumstances, it is better to have one than not.(http://hklaw.eu/hk_news/pre-nuptial-agreement/)
It is a difficult topic to bring up, and certainly not the most romantic one when you are planning your wedding. However it is important that you raise the issue sooner rather than later, as any prenup which is done days before a wedding is unlikely to be enforced later should the marriage unfortunately fail.
For a prenuptial agreement to be upheld at a later date, it is important that everything is included in the agreement, this should include full disclosure of all assets being brought into the marriage by both parties. It should also include future events such as the birth of any children, future inheritances or illness. Any unfair agreement, or one negotiated where one party was unaware of the true picture is unlikely to be upheld by a court on the breakdown of a marriage.
Disclaimer: These answers do not constitute legal advice, and should not be relied upon. The answers are intended to be useful but do not replace legal advice tailored to your individual circumstances.