It has long been thought that Pre-Nuptial and Post-Nuptial Agreements are only for the rich and famous. This is not so. They are useful tools for anyone who is bringing wealth into a marriage and would wish to protect it in the event of the relationship breaking down. That wealth may have come from inheritance, business ventures or as a result of the death of a former spouse or from an earlier divorce.

The Matrimonial Court in England and Wales will look at how all assets in a marriage are to be shared and will not automatically ring fence them for the party who introduced them. If you seek to preserve assets then Pre-Nuptial or Post-Nuptial Agreements are an effective way of doing so. We have extensive experience of advising in relation to these Agreements for many individuals and within families where inherited wealth is significant. Each one is tailored to the specific needs and circumstances of the individual. We can also give guidance in terms of raising the topic within the family or with your future spouse.

A Pre-Nuptial or Pre-Civil Partnership Agreement sets out the intentions of you and your future spouse in relation to financial matters on marriage, during the course of marriage and in the event you choose to separate. It will identify assets, confirm ownership and detail how they are to be dealt with upon separation.

Given the complexities involved and to give your Agreement the best possible chance of being enforced, it is important to take specialist advice in good time prior to marriage. There needs to be time to consider the assets and negotiate upon terms. You may wish to negotiate terms using Collaborative Law to assist.

Even if you have already married or entered into a civil partnership, you may still wish to take the precautionary step of entering into an agreement. Post Nuptial or Post Civil Partnership Agreements carry the same weight and recognition provided that they have been properly entered into as outlined above. Post Nuptial Agreements can be useful when circumstances have changed such as when inheritance is received or if parents wish to pass assets to their adult children.

1. Are Pre-Nuptial Agreements binding in the UK?

Whilst they are not, as yet, binding they are often given great weight within the proceedings and their terms are upheld. This is particularly so following a decision of the Supreme Court in 2010. Guidance tells us that the likelihood of an Agreement being upheld is greatest if the following criteria are met:

  • Both parties receive independent legal advice or have had the opportunity to do so before entering into the agreement;
  • There is full and frank disclosure of each parties’ assets, liabilities, pension provision and income;
  • The agreement should be entered into within a reasonable amount of time prior to marriage;
  • The agreement must be realistic and fair.

2. Why enter into a Pre-Nuptial or Post-Nuptial Agreement?

The court in England and Wales will not automatically return assets to the person who brought them to the marriage. Therefore, if it is important that you retain assets or financial claims against you are limited on divorce, an Agreement provides for this. Inherited assets or those acquired from a first marriage will not automatically be yours upon divorce without agreement to that effect.

3. I’m getting married in a fortnight, can I still enter into a Pre-Nuptial Agreement?

A Pre-Nuptial Agreement should be concluded at least 28 days before the date of the wedding. You will need to allow time to disclose financial information, negotiate and reflect upon the terms of the agreement you are considering entering into. Two weeks is therefore too short a period to conclude this and you should consider a Post-Nuptial Agreement.

4. Can the terms of a Pre-Nuptial or Post-Nuptial Agreement be changed in the future?

There should always be a review clause to allow consideration of whether the Agreement meets current needs. A review should take place on life changing events such as serious illness or disability, redundancy or the birth of children. It should also occur on a regular basis every few years.

5. How much does a Pre-Nuptial or Post-Nuptial Agreement cost?

Cost will depend on the assets we have to deal with and the level of negotiation required. We will discuss this with you in detail. However, you should consider costs against the value of the assets you seek to protect and the cost of a divorce if the relationship breaks down.

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