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Preserve it and save: how conditional exemption can protect your heritage... and your wallet
Charles Richardson
The test for capacity to enter a prenuptial agreement is the same as the normal test for capacity (mentioned in Blog 1) and the individual must be capable of understanding their assets and the nature and effects of the contract they are entering into.
However, the test for capacity to marry is low and is determined by case law, which states:
- marriage is status specific not person specific;
- the wisdom of the marriage is irrelevant;
- the individual must understand the broad nature of the marriage contract;
- the individual must understand the duties and responsibilities that normally attach to marriage, including that there may be financial consequences and that spouses have a particular status and connection with regard to each other;
- the essence of marriage is for two people to live together and to love one another; and
- the individual must not lack capacity to enter into sexual relations.
What happens if an individual lacks capacity to marry or make a prenuptial agreement?
If someone lacks capacity to marry, they simply cannot marry. To marry someone who lacks capacity is deemed to be a forced marriage, which is a criminal offence. This is often known as “predatory marriage”, because marriage will automatically revoke a Will so it is a form of financial abuse.
Where a person lacking the necessary capacity to enter into a marriage is married the union can be annulled, as it is voidable. However, it is not automatically void from the outset and will only be cancelled once it comes to the attention of concerned friends and family members. By that stage their Will would already have been revoked.
If an individual lacks capacity to enter into a prenuptial agreement, given they must have an understanding of their finances to make such an agreement, the individual may also lack capacity to manage their property and affairs. In these circumstances, it would be prudent for a Deputy to be appointed by the Court of Protection to manage their property and affairs and consider whether a pre-nuptial agreement should be entered into, to protect the individual’s assets in the event of a divorce.
How we can help
Every family — and every vulnerable individual — is different. Our family law and private client team regularly work together to advise on pre-nuptial and post-nuptial agreements involving injury settlements, trusts, deputyships and capacity issues.
We’re here to help protect what matters most.
Our prenuptial agreement service
The common feature of those seeking advice on prenuptials is a search for certainty in an uncertain world. Our clients are typically either young couples setting out or those in later life, who seek to reduce the possibility of conflict in the event of their marriage breaking down or protect assets for their children.
The run up to your wedding can be a stressful time, and this does not need to add to your list of worries. We will listen to you, discuss your expectations and concerns, and advise you on the advantages and disadvantages of entering into a prenuptial agreement based on your individual set of circumstances. We can then advise on the best approach to drafting and negotiating the terms of the agreement.
Find out more information here.
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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.
Questions?
or call +44 (0)20 7814 1200
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