Prenuptial Agreements and Divorce

The recent rumours of Madonna and Guy Ritchie's divorce have sparked concerns about prenuptial or premarital agreements all over again. Many people are wondering whether or not the couple entered into a prenuptial agreement before marriage and if they did what impact this agreement could have in the court.

Celebrity prenuptials have always stirred people's curiosity and the Madonna-Guy situation is no exception. Even though the news of their divorce has not been announced formally, the public's interest in their prenuptial agreement has already reached its peak.

The much-talked about Paul McCartney Vs Heather Mills case is the most recent example of a marriage gone sour and a divorce case made complicated due to the non-existence of a prenuptial agreement. While Guy Ritchie is a successful filmmaker and many people do not suspect him to be a gold digger, people close to Madonna are still questioning whether he will be able to resist jumping on to Madonna's unique financial advantages

We all know that divorce rates are at an all-time high and that, according to statistics, most marriages are ultimately heading towards divorce. However, prenuptial agreements still seem to be a road less travelled and still a territory reserved for the celebrities.

Many people do not attach much importance to prenuptial agreements because they are not actually enforceable in court. However, it is important to remember that such agreements do prove to be useful in ancillary relief proceedings. For that reason, premarital agreements are fast gaining popularity.

Are you Getting Married and Considering a Prenuptial Agreement?

Getting married is a beautiful feeling; marriage seems to be a culmination of all the dreams and hopes that you and your partner thought of together. Since marriage can be an emotional time and also a time for love, most people find it hard to discuss an end to a marriage during this time. This is especially true because it is common for people to think that talking about ending a marriage before even getting into it might be ominous.

While it is normal to feel that your marriage will last forever and that you and your partner will make it through all the highs and lows, it is best to insure your interests in the same way that you would protect any other asset against disaster. After all, you buy a new car and an accident might be the last thing on your mind but you still get your car insured to protect yourself from any unforeseeable calamity. Similarly, while you would want your marriage to last forever, it is important that you protect your financial interests nonetheless.

It has been observed in most cases that a prenuptial agreement has saved people from losing their hard-earned money to a partner seeking financial revenge out of a divorce. On the other hand, there have been many cases, including the White vs. White case, wherein one of the partners walked away with half the fortune without having any rightful share to it.

When is a Prenuptial Agreement Useful?

A prenuptial agreement is very useful when people contemplate a second or a third marriage. In such cases, people have significant assets before marriage that they rightly need to safeguard.

Prenuptial agreements are also useful when the court needs to determine the 'non-matrimonial' property during division of assets at the time of divorce. If you have accumulated a large number of assets before marriage, it is imperative for you to weigh the benefits of a prenuptial agreement.

Is a Prenuptial Agreement Helpful During Divorce?

A prenuptial agreement can be helpful in court. However, as mentioned earlier, it is not enforceable in court. There are a number of factors that influence how much weight a court will attach to a premarital agreement. Once the court has evaluated all these factors, it will make its judgment accordingly.

• Firstly, the court will establish that there was no undue influence or duress involved when the agreement was entered into. Therefore, if any threat or blackmail is proved in the court, the prenuptial agreement will be rendered useless. However, if one of the partners had merely threatened that a marriage could not take place without signature on the agreement, it is allowed.
• Secondly, the court will examine if both the parties understood what they were signing before they signed the agreement. In addition, the court will also analyse whether each of the partners had independent legal advice before signing the agreement and whether or not the partners had fully disclosed their financial position to each other.
• Thirdly, the court will examine if the circumstances since marriage have changed and if these changed circumstances would make the prenuptial agreement unfair.