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Prenuptial Agreements -How They Work - YouTube
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more and more clients are coming to see
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me wanting prenuptial agreements there
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was an important case in the Supreme
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Court in 2010 which set down some
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guidance about how prenuptial agreements
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are dealt with in this jurisdiction what
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the case did not say is that prenuptial
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agreements are binding come what may but
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I'm going to talk to you a bit about
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what they did say the factual matrix of
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the case is interesting capturing rad
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maka the glamorous German heiress
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married a Frenchman a banker in London
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before the wedding Catron's
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father insisted that the couple sign a
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prenuptial agreement as she had
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inherited wealth the agreement was
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prepared by the family's German notary
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now mr. granite Eno was French so he
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wasn't fluent in German and certainly
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not enough to understand the agreement
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in full the agreement didn't set out
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with mrs. rad Macca's true worth and mr.
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granite Eno didn't get independent legal
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advice on it the agreement was for
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separate property what's mine is mine
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what's yours is yours
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after 8 years the marriage ended and
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there were two children the husband
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didn't want to be kept to the terms of
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the agreement and took the matter to
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court the court was not ignoring the
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prenuptial agreements completely awarded
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the husband more over five and a half
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million pounds two and a half million
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was to provide him with a house the wife
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appealed and the case fought right up to
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the Supreme Court and the Supreme Court
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lowered his award and actually said the
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2.5 million for the house he could only
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have until the youngest child was 18 and
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then it was to go back to the wife the
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court said that a prenuptial agreement
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freely entered into by the parties
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should be upheld unless in the
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prevailing circumstances at the time it
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would be unfair to hold the parties to
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agreement so what does that mean well
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freely entered into at the time use
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there shouldn't be any duress so you
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shouldn't be signing an agreement on the
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eve of the wedding because one party
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might later argue they felt they had to
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sign it otherwise the wedding wouldn't
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have taken place and might seek to
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overturn the agreement on that basis the
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court also said that you can no longer
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argue later that you thought the
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agreement wouldn't be upheld in this
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jurisdiction the court were making a
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strong message that from now on
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agreements would be upheld and that
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wouldn't be an excuse and you should
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both have independent legal advice which
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which means that you both need to go and
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see separate solicitors in separate
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firms and negotiate the precise terms of
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the settlement if you are the
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financially stronger party and your
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future spouse can't afford to go to a
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solicitor if you want a prenuptial
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agreement you're better off paying for
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them to get some independent legal
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advice because that will make the
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agreement more watertight and therefore
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more worth it moving on to what the
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Supreme Court said about in the
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circumstances it being fair as I often
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say to my clients fairness is an elastic
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concept and different judges consider
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fairness differently the agreement must
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therefore provide adequately for the
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financially weaker party it must
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certainly have built in a review because
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the Supreme Court said over time the
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agreement will be weaker in a long
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marriage if the agreement was just
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signed before the wedding and not
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reviewed and there must be adequate
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provision for children so if there are
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no children the agreement must provide
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for a review if there are any and if
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there are children already it must
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provide sufficiently for those
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children's needs another important point
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the Supreme Court said was there
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if you know and understand the
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implications of signing a prenuptial
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agreement but were indifferent about the
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other party setting out their assets
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fully and in detail you will still be
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held to the terms of the agreement and
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you won't be able to argue I didn't know
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the extent of their wealth and if I did
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I wouldn't have signed this when you go
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to see a family lawyer they will take
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your detailed instructions about the
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terms of the prenuptial agreement and
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explain to you more about what it must
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contain the trick to keeping your cost
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down is to talk about the agreement as
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much as possible with your future spouse
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before you go to see your family lawyer
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so that your instructions to your
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respective lawyers mirror each other
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people sometimes say to me Lisa
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prenuptial agreements aren't very
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romantic are they but an argument to
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that is well you wouldn't go on holiday
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without travel insurance you're
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preparing for the worst case scenario
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and the good things about prenups are
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that it brings certainty and also it
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encourages a couple before a marriage to
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talk about money and their finances
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jointly and separate in relationships
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money is a real flash point for
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arguments in my view if you can have
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open and frank discussions about money
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and about your assets before the
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marriage that stands you in good stead
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and you'll learn more about the other
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person and perhaps go into the marriage
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with your eyes more open a good way to
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negotiate and conclude a prenuptial
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agreement is using the collaborative
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process where the couple and their
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lawyers sit around a table to discuss it
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and the lawyers are there helping the
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couple together to reach a compromise
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agreement in both their interests
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finally if you are watching this
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contemplating marriage congratulations
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and don't leave it too late in the day
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to go and instruct a family lawyer if
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you are considering having a prenuptial
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agreement
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you
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