Pre and Post Nuptial Agreements

Pre and Post-Nuptial Agreement Solicitors

What is a nuptial agreement?

This is an agreement made by a couple planning to marry or enter a civil partnership or already in a marriage or civil partnership concerning the ownership of their respective assets should the marriage or partnership break down. A pre-nuptial agreement is one entered into before the marriage takes place and a post-nuptial agreement is one made after the marriage has taken place. The agreement should be in writing and signed as a deed. The legal implications of either are the same.

Why enter into a nuptial agreement?

One of the purposes of a nuptial agreement is that, if your marriage or civil partnership breaks down, there can be clarity as to how the assets will be divided. This is often of particular importance where there is pre-existing wealth, assets, or savings. We are often consulted, for example, by a future spouse where there is inherited wealth or a family business. A nuptial agreement can protect those assets.

However, when a Court considers the assets on divorce, all assets will be included and this can be difficult to accept for families who have had a business for years or inherited their assets. The Court has a wide discretion when it comes to distributing assets, and the needs of any children of the marriage and the other spouse are of high importance. The starting point is equality.

You might also want to consider a nuptial agreement if one or both of you has children from a previous relationship and wishes to protect assets for the purposes of inheritance planning or if one or both of you has a connection with, or property in, another jurisdiction.

Therefore, a nuptial agreement is a very sensible consideration to avoid potential difficulties upon divorce at a later date.

Everyone has their own reasons for entering into a nuptial agreement. It may be that you and your partner simply like to be as organised as possible with your finances. Entering into a nuptial agreement does not mean you are more likely to separate. A nuptial agreement might be particularly beneficial where:

• one of you has substantially greater capital or income than the other
• one or both of you wishes to protect assets you owned prior to the marriage or civil partnership, including inheritances or family trusts and businesses.

Are nuptial agreements binding?

In England and Wales, nuptial agreements are not strictly binding if you get divorced, but they are likely to be followed unless the effect of the agreement would be unfair at the time you seek to rely on the agreement. In other countries, nuptial agreements may be binding and you will need advice from a specialist lawyer in that jurisdiction – we can assist in locating a suitable lawyer for you.

To improve the prospect that the agreement will not be considered unfair, both of you will need to set out your financial circumstances in full (called financial disclosure), take independent legal advice on the agreement and finalise it well in advance of your wedding, ideally a minimum of 28 days. Neither of you should be put under any undue pressure to sign it. Circumstances change and it is important to keep the agreement under review to ensure it remains enforceable.

A nuptial agreement cannot prejudice the interests of any children in your family so the agreement will commonly include provision for a review of the agreement if and when you have children.

It takes time to negotiate and obtain legal advice on your agreement, so you should contact your solicitors in plenty of time before the above 28 day guideline.

You should not enter into a pre-nuptial agreement unless you intend to be bound by the terms of that agreement.

If you would like a nuptial agreement, or if you are unsure whether a nuptial agreement is for you, it is important to seek legal advice as early as possible. We offer a free exploratory call, so that we can discuss your needs and look to match your specific circumstances with the right specialist family lawyer in our team.