Vines Legal's A-Z of All things Family and Matrimonial; P for Pre and Post Nuptial Agreements

Welcome to our Alphabet Information Series. Today’s topic is P for Pre and Post Nuptial Agreements

Nuptial agreements (pre-nups and post-nups) are more commonly associated with the rich and famous and can often be sensationalised on-line and in magazines. This has led to common belief that nuptial agreements are unfair, worthless and unromantic, when they can actually be a sensible, fair and transparent way to discuss the financial picture and agree the outcome if the marriage were tobreak down.

A Prenuptial Agreement is an agreement made between two parties before marriage or civil partnership takes place. It can be used to set out how the couple wish their assets to be divided between them if they later separate or divorce. This can be important if the parties to the marriage have particular family assets that they wish to be kept within the family, for example, a family business, property or family heirlooms. You can list nearly anything you want. For example, stating that you will try mediation if you decide to divorce. Even a settlement about pets can be included. But there are also limits and legally you cannot demand things like child support or predetermine child custody arrangements.

While not yet legally binding under English law there have been a number of cases where the Court has taken into account prenuptial agreements and essentially, the position now would be that if in the event there is a pre-nuptial agreement the court would be asking ‘why should we not follow this agreement?’ In fact it was as far back as in 2010 that the UK Supreme Court recognised pre-nups for the first time in the now famous case of Radmacher v. Granatino. Since that time pre-nup enquiries to family law solicitors have increased 70%.

Pre-nuptial agreements will usually be upheld by an English court if they have been carefully negotiated with the benefit of independent legal advice. Unless the Court believes there are compelling grounds for it being ‘unjust’ to hold the parties to their agreement, the parties’ autonomy in entering into the agreement will be respected.

With 42% of all marriages in the UK ending in divorce, an increasing number of people are considering pre-nup agreements, especially those entering into marriage for a second time. However, 1 in 4 couples who look into having a pre-nup do not go through with getting married.

The Postnuptial Agreement, just like a pre-nuptial agreement, spells out how a couple’s assets are distributed in the event of divorce or death. The difference being, as the name suggests, a post-nup can be undertaken at any time after the marriage has occurred. Like pre-nups, post-nups aren’t legally binding but they do carry weight in English Courts, providing they have been signed by both parties freely without duress and alongside legal advice.

For both pre and post nuptial agreements it is also important for each person to make full disclosure of their assets (including property, money in bank accounts, pensions and income) at the time of the agreement. All of this should be done before the agreement is signed.

Arming yourself with accurate legal information from the outset can be vital in the resolution of your matter and can make the process less stressful. If you are considering a pre or post nuptial agreement or your partner has requested it, call 01246 555 610 to arrange a free, no obligation consultation with one of our experienced solicitors.