A Guide To Pre-Nuptial And Post-Nuptial Agreements

Contents

1. What is a pre-nup agreement?
2. What is a post-nup agreement?
3. When are nuptial agreements needed?
4. Is a nuptial agreement legally binding?
5. What is the process to obtaining a nuptial agreement?
6. Who should get a pre- or post-nuptial agreement?
7. How long does a nuptial agreement last?
8. What should be included in a pre-nuptial agreement?
9. When will the court refuse to enforce an agreement?
10. What if my partner doesn’t want to sign the pre-nuptial agreement?
11. What happens during a divorce if the couple has a pre-nuptial agreement?

When looking forward to getting married, or happily living with your spouse or partner, wondering what will happen if you were to break up may not be in the front of your mind. As unromantic as it is, it is a wise consideration to protect your finances should this happen.

Our lawyers work with you to prepare a clear, properly drafted document that will either influence the outcome of a court decision or be followed exactly on separation. Failure to have a pre- or postnuptial agreement in place can leave you open to an unpredictable courtroom deciding your financial fate if things go wrong.

What is a pre-nup agreement?

A pre-nup agreement is a legal agreement made between two individuals before their marriage, setting out how the couple currently arranges their finances and how this will work during their marriage and how any assets are to be divided should they later on divorce or separate.

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What is a post-nup agreement?

A postnuptial agreement is similar to a pre-nup but is entered into after the marriage or civil partnership has occurred. Some couples who have already entered into a pre-nup choose to enter into a further post-nup to confirm the arrangements still stand.

The purpose of the postnuptial agreement is to record the agreement reached between a couple, in relation to what will happen to their finances, should the marriage break down.

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When are nuptial agreements needed?

• You are getting married for the first time and wish to protect a business/asset you have built on your own.
• You are getting married a second or third time and want to preserve assets for children you already have.
• You have business interests or have inherited wealth that is not for sharing if the relationship breaks down.

Whatever the reason, our solicitors can help with agreements that can cover all of your assets or just key elements you wish to protect.

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Is a nuptial agreement legally binding?

Pre-nups are not yet legally binding in English law, but they are becoming increasingly upheld provided that they are entered into fairly and on a voluntary basis and both parties have received independent legal advice before doing so.

Pre-nups do not overrule a court’s decision on financial arrangements on divorce, but they do carry some influence and are worth having in place.

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What is the process to obtaining a nuptial agreement?

Not everyone knows how the process of engaging pre- and post-nuptial agreement solicitors works, so we have provided an overview below to give you some peace of mind.

1. The first stage is to get in touch with us by email or telephone, 0330 024 0333, and you will then be assigned to one of our Pre & Postnuptial Agreement specialists.
2. You will then receive a free 15-minute consultation within 24 hours via Zoom or telephone to discuss the issues you’re facing.
3. You are then provided with a transparent breakdown of our costs and, if you would like to proceed, we send you a pack of our onboarding documents.
4. Following this, we will guide and support you through the process of achieving a resolution that works for you and your family.

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Who should get a pre- or post-nuptial agreement?

• If you are engaged to be married or about to enter into a civil partnership and wish to have certainty regarding your financial matters in the event of your marriage/relationship breaking down, then you should have a pre-nuptial agreement.
• If you are already married/have entered a civil partnership, and you would like to make arrangements to create certainty regarding your financial situation in the unfortunate event your marriage/relationship breaks down, you should have a post-nuptial agreement.
• If you have children from a previous marriage whom you wish to financially safeguard then, again, you should look to obtain a nuptial agreement.
• If you have significantly more wealth than your partner, then, again, you may wish to enter into a nuptial agreement.

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How long does a nuptial agreement last?

There is no expiry date for a nuptial agreement. Once entered into, it will last for the full duration of your marriage, and you may revisit/amend as your personal circumstances change.

What should be included in a pre-nuptial agreement?

• A prenuptial agreement sets out which party owns or will own certain assets should the marriage break down. It can include the following:
• Children from a previous marriage.
• Debt protection.
• Inheritance.
• Pension.
• Family property.
• Savings.
• Income.
• Spousal maintenance.
• A business.
• Separate assets.
• Shared assets.

Significant changes in circumstances during the marriage, including the birth of children, are usually dealt with by reviewing the agreement at regular intervals.

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When will the court refuse to enforce an agreement?

The Supreme Court highlights three factors that increase the likelihood of a nuptial agreement being upheld in court:

It must be freely entered into.

Both parties must understand the implications.

It should not be unfair and hold parties to their agreement in the circumstances prevailing.

Should the court feel that the nuptial agreement does not satisfy these factors, then they may choose to rule out the nuptial agreement from the proceedings.

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What if my partner doesn’t want to sign the pre-nuptial agreement?

Your legal representative should ask your partner to explain what aspects of the pre-nuptial agreement they do not agree with.

The terms of the pre-nuptial agreement can then be re-negotiated (if necessary) and once both parties are in agreement with the wording, your partner should then feel in a position to be able to sign the document.

Ultimately, both parties need to enter into a pre-nuptial agreement of their own free will and volition and therefore, if either party does not wish to enter into the agreement, they cannot be forced to do so.

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What happens during a divorce if the couple has a pre-nuptial agreement?

The court will consider whether to give effect to a pre-nuptial agreement if it is freely entered into by each party with a full appreciation of its implications.

The key question is fairness. To establish this, the court will make inquiries into how the agreement was entered into and if the parties were aware of the implications of the agreement. It must be fair to hold both parties to the agreement in the circumstances prevailing.

Visit our divorce guide.

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We can guide you through the nuptial agreement process

We understand that raising the discussion around pre-nuptial agreements can be difficult, particularly if you are your partners’ finances are vastly different. However, our team of family lawyers can help support you and advise you on the options available to complete your nuptial agreement process to ensure you and your family are protected. We are here to guide you through any questions you have and support you in future proofing your assets.