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An increasing tendency is being seen among couples to prevent the loss of their assets after their divorce or relationship breakdown. For this purpose, they seek to become part of Pre-nuptial Agreements (prior to marriage) and Post-nuptial Agreements (after their marriage). The main reason behind this tendency is the rise in the cases of financial settlement following the divorce of a couple and legal significance of such agreements in England and Wales.

Legal significance of Pre-nuptial and Post-nuptial Agreements

Presently, parties entering such agreements are not binding legally and therefore there is no legal requirement for the parties to such Agreements to abide by the terms of these agreements; however, the verdict of the Supreme Court with reference to Radmacher v Granatino [2010] case indicated the significance of such agreements in financial settlements following a divorce in specific circumstances.

 

It is however, expected that just like in Europe and US, the Laws regarding the contractually binding status of well-defined marital agreements will be approved in England and Wales in the near future.

 

It is highly recommended for a stronger financial party to refrain from pressurising a weaker counterpart to be a part of agreement. This practice must be followed till the introduction of reforms in the said Laws. In our experience, a prenuptial agreement is more likely to be upheld if it is signed at least 21 days before the wedding day, its contents are reasonable, clearly not out of date (providing for future children, for example, and preferably a review after a period of time) and if it was properly drafted by a family lawyer. The parties to the contract must also seek independent legal advice to comprehend the terms of the contract which is being signed.

 

Various methods such as collaborative negotiation may be employed to negotiate the terms in a marriage contract.

 

A prenuptial agreement provides a clear agreement that can lead to peace of mind for both parties. A prenuptial agreement (also known as a pre-nup) is a formal, written agreement between two partners prior to their marriage. It sets out ownership of all their belongings (including money, assets and property) and explains how it will be divided in the event of the breakdown of their marriage.

 

They can give you peace of mind if:

 

  • You want to protect inheritance or future inheritance, both money and assets
  • There are assets and/or property that would be very hard to split 50/50
  • You have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights. (It is also crucial to make a will)
  • Either party own a business which they’d like to retain control of
  • If your spouse has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable

 

A Post-nuptial Agreement is an agreement entered into after marriage that regulates the financial terms of separation, divorce or dissolution.  If done properly, it is extremely difficult to challenge the terms of a postnuptial agreement.  Post-nuptial Agreements are not strictly legally binding, but they can be more likely to be upheld than prenuptial agreements because there is no looming wedding date putting pressure on the couple to sign up. 

Breakdown of Cohabiting or Live-in relation between a Couple

Similar to a married couple, the un-married couple having a relationship needs to settle financial matters on the breakdown of their relationship. These issues may be related to asset ownership, children custody, and children provision.

Rights and Privileges of Cohabiting or Live-in Partners

Contrary to the anticipation of most couples in a live-in relationship, their relationships is not deemed same as that of the married couples and they don’t get the same rights as a married couple even if they are together for years. For a better comprehension, you can search the financial provision for unmarried couples.

Expectations of Living Together and Cohabitation Agreements

It is imperative for both parties to a marriage or live-in relation to decide their financial terms and the securities in any property purchased by the couple. Moreover, it is recommended to ensure discussion of terms at the time of framing the contract terms and the inclusion of these terms in the cohabitation agreement. Couples specifically with children must surely go for cohabitation agreements since these enable the parties to protect their assets and properties in case of breakdown of their relationship.

We offer a leading service to individuals, couples and family groups aimed at reaching an outcome that is suitable for all parties.

 

At White Horse Solicitors & Notary Public we understand that family issues can be difficult for those involved, especially on an emotional and personal level. We approach each case with the openness and care due to such trying issues, offering personalised guidance and assistance where we can.

 

Please contact us to discuss your Pre / Post Nuptial Agreement requirements or call us on 020 7118 1778

FAQs:

When considering if the prenuptial agreement is fair and should be upheld, the court will look at things such as whether both parties understood it properly and if they had enough time to review it before signing.  Therefore when a prenuptial agreement is created you need to ensure the following:

 

  • To comply with UK law, the pre-nup must be drawn up by a qualified solicitor
  • Both parties must have separate solicitors to avoid any claim of conflict of interest
  • All assets must be fully disclosed by both parties
  • Both parties must fully understand the agreement
  • Both parties must voluntarily agree to it
  • Both solicitors must confirm it was entered into freely and knowingly
  • The prenuptial agreement should be signed at least 21 days before the marriage

A prenuptial agreement or ‘prenup’ is a written agreement you make before your marriage. The prenuptial agreement sets out what should happen if you divorce.

 

Take advice about a prenup if:

 

  • you already have substantial assets and you want to keep those out of the reckoning if your marriage breaks down;
  • you have been married or a partner in a civil partnership before and are taking property into the marriage that you want to keep separate for your own children;
  • there is an international aspect to the marriage, so that you might find financial awards made against you in the courts of more than one country.

Usually not, unless there is an international aspect to your marriage. But could your circumstances change? What if your business takes off or a rich relative leaves you a substantial bequest in their will?

 

You may prefer to cross that bridge when you come to it by dealing with it later on a post-nuptial Agreement, rather than asking your partner to sign a prenup now, but it’s worth thinking about these possibilities.

Your prenup should cover:

 

  • how assets such as money, shares, pension, etc are to be divided;
  • what will happen to your house(s) – who will be entitled to live where;
  • any ongoing payments (maintenance) to be paid to the other and for how long;
  • any maintenance to be paid for the children;
  • where there is an international aspect to the family (for example, you own homes in more than one country or you and your partner are of different nationalities), the country where the divorce proceedings will take place.

Many take the view that divorce is always a possibility. It can be a sensible precaution to discuss unpleasant possibilities in an open and frank manner, just as you have to do when you make a will. Just identifying an issue can stop it being a problem later.

 

Getting married or forming a civil partnership revokes your will, if you have one. Even if you do not, you will want to make sure your spouse or partner is provided for if you die. So you should talk about a will with your solicitor before you marry or register your partnership anyway.

Yes. It is unlikely that a court would follow a prenuptial agreement unless you had both had proper legal advice on its effect.

No. It is important that each of you receives independent legal advice. Without it, the court will give less (or possibly no) weight to the prenup.

Fees for drawing up a prenup are typically based on how much work is involved, so it depends on your circumstances. For example, whether there are children from previous marriages or civil partnerships, whether there is an international element, the amount and nature of your assets, etc. Typical costs can be anything from £500 upwards.

A prenuptial agreement must be reasonable and fair. Ensure you check with your solicitor every time there is a significant change in your circumstances, such as the birth of a new child, which might affect the award a court would make if you divorced or separated.

 

Also check with your solicitor from time to time, to make sure that the law (or its interpretation by the courts) has not changed in such a way that the prenup stops being considered fair.

Prenuptial agreements are not automatically enforced by the courts, but they are increasingly influential when the court is deciding an appropriate financial award in divorce proceedings.

 

You are likely to be better off with a prenup than without one.

 

Particular areas to look out for are:

 

  • The agreement must have been made a reasonable time (preferably at least 21 days) before your marriage or the registration of your civil partnership. If it was made immediately before, the court will be concerned that one of you might have put pressure on the other.
  • In all other respects it must have been made without either of you imposing any pressure or duress on the other.
  • Each of you must have been given the opportunity to receive independent legal advice on the contract.
  • Each of you should have given the other full and frank details of your financial circumstances.
  • The terms of your agreement should be fair (although this concept is difficult to define).

Yes:

  • If either of you has made a will, it will become void when you marry or form a civil partnership, unless it has specifically been made in anticipation of the marriage or registration of the civil partnership. So you will probably need to make new wills.
  • If either of you has not already made a will, you are strongly advised to do so. If you die without making a will, it is the law that decides who gets what if you die, not you or your spouse or partner – and there are plenty of other disadvantages to not having a will.
  • If either of you has been married or a partner in a civil partnership before, your new marriage or civil partnership might affect your previous divorce settlement. Take advice.

When there is any concern about the strength of a prenup (for example, if it was only signed the day before the wedding), clients sometimes wish to sign a postnup to reaffirm the terms of the prenup.  Postnups are also useful where there has been a change in circumstances since the prenup was signed (for example, an unexpected inheritance or career change) in order to re-visit the terms of the prenup.  Postnups are also considered where a couple has had relationship difficulties and want the marriage to continue with financial peace of mind.

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