Pre-Nuptial and Post-Nuptial agreements are for any couple that intends to enter into or have already entered into a marriage or civil partnership.
A Pre-Nuptial Agreement is a contract between two people which sets out what will happen to their property in the event that the marriage comes to an end. It is signed before the wedding takes place.
Where it is felt that a Pre-Nuptial Agreement may take away some of the romance of getting married or where the wedding is imminent and there is insufficient time to complete the agreement, you can instead sign a Post Nuptial Agreement. This will contain the same provisions as a Pre-Nuptial Agreement but is completed and signed after the marriage.
Why do I need a Nuptial Agreement?
When you get married, you each have potential claims against each other’s capital, income and pension should the marriage come to an end. Both parties’ finances are looked at as a whole to be divided between them according to factors set out in Matrimonial Causes Act 1973 aimed at achieving fairness.
People who have inherited or built up property or assets before they marry may want to try to protect these from being divided up if the marriage should fail (often a particular concern where people marry later in life or for a second time). Pre and Post nuptial agreements are used for that exact purpose.
Are Pre or Post Nuptial Agreements legally binding?
Nuptial Agreements are not legally binding under English Law, but they are increasingly taken into account by the courts particularly where:
- Both parties obtained independent legal advice and understood the nature and implications of the agreement they signed.
- Both parties entered into the agreement freely with no undue influence or pressure on either party to sign it.
- Both parties fully disclosed all their finances (capital, income, pension and debts).
- The agreement was completed at least 21 days (but ideally 2 to 3 months) before the wedding.
Ultimately, it must also be ‘fair’ to hold the parties to the terms of the agreement in the circumstances at the time of the divorce. The issue of fairness is assessed with reference to the parties’ needs, any element of compensation that may be relevant (e.g. giving up a career to raise children) and the sharing principle (matrimonial assets should be shared equally). However, the very existence of the agreement will affect what is considered to be fair.
The court increasingly favours respecting the terms of an agreement which has been entered into freely and in full consideration of the consequences, particularly where the parties’ needs are met. It is therefore seriously worth considering if you have assets you wish to protect.
What should a Pre or Post Nuptial Agreement cover?
The agreement needs to be very clear and should address any potential changes in circumstances that may arise during the marriage for example children, loss of employment, debts, and inheritances. The agreement should specifically set out how the agreement is to be affected by those ‘events’.
It is also highly recommended to make provision for regular reviews of the agreement so that if the marriage does break down many years later, there can be no suggestion that the agreement is ‘out of date’ or that it is ‘unfair’ given the new circumstances.
If you are considering a Nuptial Agreement, contact one of our Family Law Solicitors to discuss your case in more detail.