For business owners, the intertwining of relationships and financial assets can be a complex and delicate balance. As individuals embark on the journey of building a life together, it is crucial to consider the potential impact on the business if the relationship were to end. Here, Kelly Parks, Head of Family Law at Banner Jones explains why business owners should consider a prenuptial or post-nuptial agreement.
Prenuptial agreements and post-nuptial agreements may not be the most romantic aspects of a relationship, but they are invaluable for business owners looking to protect their personal and business interests. By addressing financial matters and potential conflicts before they arise, these agreements can help couples navigate the complexities of personal relationships and business partnerships and protect the business if the relationship ends.
Understanding Prenuptial and Post-nuptial Agreements
A prenuptial agreement, commonly known as a prenup, is a legal document entered into by a couple before marriage or a civil partnership. A post-nuptial agreement is an agreement made by a couple after they have married or entered into a civil partnership. Both will record the agreement reached between the parties as to who gets what if they separate. They are prepared at a time when couples are together and communicating without the hostility and emotions that can be present at the point of separation.
How do they work?
Prenuptial agreements and post-nuptial agreements can record what will happen to the business if the parties separate. You need to clearly set out how the business assets will be divided, and who will get what in respect of your personal assets. The income generated and potential maintenance can be considered. Liabilities and who will be responsible for them can be recorded. You can agree that inherited assets and assets brought into the marriage are protected.
It is important to note, however, that prenuptial agreements and post-nuptial agreements are not automatically enforceable in England and Wales.
“Prenuptial agreements and post-nuptial agreements may not be the most romantic aspects of a relationship, but they are invaluable for business owners looking to protect their personal and business interests.”
The case of Radmacher v Granatino in 2010, was a landmark case with Judgment given from the Supreme Court that the pre-nuptial agreement in that case was valid. This does not mean that every pre-nuptial agreement will be upheld, however, provided they are drawn up fairly and accurately and are freely entered into, and the implications fully understood by both parties, pre-nuptial agreements are persuasive and will be considered and the terms may be upheld by the Court. The fairness of the agreement will be considered on a case-by-case basis.
Key Components of Prenuptial Agreements for Business Owners
Business Valuation:
Clearly outline the value of the business at the time of entering the agreement. Specify how this value will be determined in the future, especially if the business grows or evolves. Will this change the agreement?
Protection of Business Assets:
Define the extent to which the business assets are considered separate property. This includes intellectual property, business profits, and any other assets directly associated with the business.
