Pre-Nuptial & Post-Nuptial Agreements
Providing you with protection, in the event of the future breakdown of your relationship.
What is a pre-nup?
A pre-nup is formal written agreement entered into prior to marriage, setting out ownership of property, assets and capital and how they are to be divided in the event your relationship breaks down. Pre-nups are particularly useful for second or subsequent marriages.
What is a post-nup?
A post-nup is very similar to a pre-nup, however the agreement is entered into after the parties have already married.
Are nuptial agreements binding?
Nuptial agreements are not binding. The parties to a nuptial agreement cannot override the court's broad discretion to decide how to redistribute their assets and income on an application for financial remedy. When considering an application for financial remedy, the court must, however, give appropriate weight to a nuptial agreement as a relevant circumstance of the case when considering the factors set out in section 25 of the Matrimonial Causes Act 1973 (MCA 1973). It may be that a nuptial agreement should be given decisive weight. This will depend on the circumstances of the case.
Seeking specialist legal advice for pre-nuptial agreements and post-nuptial agreements
The case law in this area is complex. It is, therefore, essential that pre-nups or post-nups are properly drafted with legal advice.
What are the objectives of nuptial agreements?
Essentially the objectives of pre-nuptial agreements and post-nuptial agreements are the same:
- Clarification. To clarify how the parties will conduct their financial affairs during the marriage, to enable the couple (especially the financially weaker party) to have transparency at the start of the marriage. This may also assist the financially weaker party to feel financially secure within the marriage.
- Certainty. To provide certainty for couples who wish to formally agree how their assets should be divided if they later separate or divorce.
- Protection. To protect assets (such as inherited wealth or pre-marital property) from a later financial claim.
- To limit scope for uncertain, emotionally draining and financially costly court proceedings in the event of the future breakdown of the marriage.
Drafting an Agreement
A properly drafted agreement can ensure that your intentions are clearly recorded in relation to those pre-acquired assets, and indeed any assets accrued during the marriage, so you are both clear on ownership and how assets are to be divided.
There are certain key points which are important when entering into a pre-nuptial agreement and these are as follows:-
- The agreement needs to be entered into no later than 28 days prior to marriage.
- You each need to provide full financial disclosure so that you make an informed choice from the outset.
- The agreement needs to signed by the two of you and two independent solicitors.
- The document needs to contain a provision for a review and it is important that the documentation is reviewed on the happening of certain events. Typical events include the earlier of:
- The birth or adoption of a child of a family
- Either of you becoming permanently incapable of work
- 5 or 10 years' time following the agreement being entered into
Other than point one, the same applies for post-nups as well.
Are they worth it?
We understand that entering into a nuptial agreement that states how assets are to be split should your marriage breakdown is not very romantic and can cause offence to some however:
- It can provide certainty and acrimony.
- Both parties know where they stand from the outset.
- It can give family members who may be gifting money, providing loans etc some certainty and comfort.
- It allows for openness from the very beginning.
- It could avoid the need for costly arguments/ litigation.
It is not the hope nor the want of parties or their solicitors that the marriage breaks down, the agreements just allow for protection, should that be the case.
Why might the court not uphold an agreement?
There are several reasons, such as, although not limited to, the following:
- One party did not have legal advice and it is found that they did not make an informed decision when entering into the agreement;
- One party was unduly pressured into signing the agreement;
- In the case of pre-nups it was entered into later than 28 days prior to the marriage;
- One party withheld certain financial information, again meaning the other could not make an informed decision;
- The parties have since had children and the agreement has not been updated to reflect that-;
- One party’s circumstances are greatly different to when the agreement was entered into.
As stated above, it is therefore important that specialist legal advice is sought by both parties when considering and entering into a pre-nup or post-nup.
Can we use the same solicitor?
No. Both parties much have their own, different solicitor (from another law firm) to allow them to obtain independent legal advice and avoid any conflict of interest.
For further information, or to arrange an appointment please contact us on 01274 861096 (Liversedge) or 01423 637272 (Harrogate) or email firstname.lastname@example.org. Please note that we offer a free half an hour consultation.
Mediation helps you make decisions without spending months locked into costly litigation proceedings.
Collaborative law is a dispute resolution option to assist you to resolve matters outside of Court.
Cohabitation & Separation Agreements
Ownership of the home after a separation can be a difficult issue but the outcome can be different if you are cohabiting.
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