What is a pre-nuptial or post-nuptial agreement?

What is a pre-nuptial or post-nuptial agreement?

Pre-nuptial (before marriage) and Post-nuptial (after marriage) agreements can be used to set out the rights and obligations over property and finance if a couple’s marriage or civil partnership is dissolved. It is worth drawing-up a nuptial agreement if:

• One or both partners have children from a previous marriage or relationship. The agreement can be used to protect any money set aside for those children and not treated as a matrimonial asset.

• To protect assets acquired before marriage, or expected to be

received during the marriage but to be kept separate.

• If one party to the marriage has a higher asset or income base than the other

•  If this is a second marriage and the parties are bringing in assets or income from the previous marriage

• To protect the family home or other houses which one party may have  

Are they legally binding and recognised by the Courts?

These types of agreements are not recognised in statute in England and Wales. However, Courts are more likely to be persuaded by and endorse the agreement when:

• Both parties have had independent legal advice about the nuptial agreement

• Both parties have openly disclosed their financial means to each other

• In the case of pre-nuptial agreement, it was signed at least a month before the marriage or civil partnership took place

• The terms of the agreement do not leave one party or any child of the family in financial hardship.

The courts have wide discretion in deciding what financial orders to make on divorce. Although nuptial agreements are not recognised in statute, recent cases notably the famous case of Radmacher v Granatino (2010) have shown that the court will tend to accept the terms of a nuptial agreement to be legally binding if it complies with the above conditions.

What to consider when drawing-up a pre or post-nuptial agreement?

Timing: A pre-nuptial agreement needs to be considered several months before the wedding. If it is left until the last minute there is a risk that the court will reject the terms, in case either party was hurried into signing. A post-nuptial agreement does not suffer the same problems but there is no guarantee that either party will agree to sign it after the marriage

Future events: In drawing-up a pre/post-nuptial agreement, consideration must be given to future events that may occur. If one partner is likely to earn significantly more than the other or there are plans for one partner to work part-time or give up work entirely, it is important that the agreement allows for a fair and reasonable distribution of assets otherwise it may be overturned by the court.

Children: Pre/post-nuptial agreements should also allow for the needs of any children. If a couple has children now or in the future, or adopts them, and the agreement does not outline what financial arrangements should be made for those children if the couple separate, then the agreement is likely to be unacceptable to the court.

Review: It should always be considered whether the agreement should be reviewed at a future date or if there is a major change in circumstances. A review clause can be built into the agreement.

It really is essential to get specialist advice from a lawyer to stand the best chance of success. We can help you plan and execute the agreement and support you throughout the process.

Please call us on 0116 212 1000 or alternatively fill in the free Contact Us form and we will get in touch as soon as possible.

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