A Legacy Intact: safeguarding your family business in the event of divorce - Book - Page 66
3. The
concern
with
wealthy
In essence the current state of the
would make it unfair to hold the
by way of disclosure is that they
law is that the English Family Court
parties to it?
may benefit from the demise
individuals
of a member of the family and/
that disclosure is a large and
or from a trust but the extent
complicated
exercise
which
for
of their potential benefit is
will
significant
work
circumstances
concluding than an injustice
presently unknown to them;
yet this does not have to be
prevailing it would not be fair to hold
would be done by holding each
the parties to their agreement.
of the parties to the terms of the
•
should give effect to a PNA that is
•
a full appreciation of its implications
in
the
does
the
agreement
mean?
freely entered into by each party with
unless
What
Are
there
any
grounds
PNA?
The essential questions that need to
be answered in relation to a PNA are:-
and
involve
families
is
the case. It is essential that
both spouses are represented
2. Where a family adopt a low
profile as to their wealth they
by
are
deal with PNAs of this nature.
understandably
nervous
solicitors
who
regularly
One of the areas of concern for
about communicating details of
family
businesses
particular
that to a third party who is not
This means that they are not
PNAs
need
in
•
Did both parties understand it?
about
for
a lineal member of the family.
likely to see the disclosure
•
Were
disclosure, usually for three reasons:
In such cases a pre-disclosure
exercise
confidentiality agreement can
accounting exercise and instead,
form part of the process.
In
will deal with it in a more generic
both
parties
properly
is
the
advised as to its terms?
•
1. It is often the case that the
Did either party put the other
as
a
massive
party under pressure to sign it?
family office, parents and/or the
other words, before disclosure
sense, often by viewing the
•
Was there full disclosure?
trustees of a potential spouse
is given, the parties enter into
disclosure to ensure it captures
•
Did each party willingly sign the
do not want that individual to
such
which
the salient aspects of the wealth
agreement?
know the extent of the likely
should safeguard the privacy
and potential wealth. It is also
a
future inheritance or benefit
of the information disclosed.
the case that the certificate
either
coming to them. The party to the
Even without having such an
that each solicitor signs about
financially or otherwise?
PNA can only disclose assets
agreement, PNAs tend to include
the advice is generally of much
Was the PNA entered into in the
that are known and to which
confidentiality provisions which
greater value and persuasion
knowledge that there would be a
that spouse is entitled. Where
oblige both parties to keep
if the Family Court recognises
child or children?
there is a potential inheritance
the content of the agreement,
the solicitor as one who has
unforeseen
the party can only disclose what
together with the disclosure
significant experience in this
circumstance arisen since the
they know. It may therefore be
attached to it, confidential; and,
area.
agreement
that the most the party can say
•
Did
either
dominant
•
•
Has
party
exploit
position
any
was
made
that
66
an
agreement
67
