What are post or pre-nuptial agreements?
Pre-nuptial agreements are a contract that you and your partner agree to enter into before you marry/enter a civil partnership to set out what would happen to your property and finances if you divorce.
A Post nuptial agreement is similar to a prenuptial agreement except that you and you partner enter into the contract once you are married/civil partnership
Why do I need a pre-nuptial agreement?
Post and pre-nuptial agreements are increasingly worthwhile if you have assets you want to ring-fence/protect against any future financial claims made by your spouse/civil partner. They are like an insurance policy and can also be used to protect assets likely to be received by way of future inheritance and to protect your interests if you are marrying or have married/entered into a civil partnership for a second or subsequent time.
Are pre-nuptial agreements legally binding?
Over the last five years the higher courts in England and Wales have increasingly taken into account the provisions of post and pre-nuptial agreements in financial proceedings associated with marital breakdown. The court considers not why a party should be bound by them, but the burden is on the party proving why they should not be bound by them.
How can I make you pre-nuptial agreement binding?
In order to stand the best possible chance of pre-nuptial agreements being upheld against any subsequent challenge, such an agreement needs to be entered into subject to legal safeguards as set out in recent judgments of the courts. These include:
- There has been an exchange of full and frank financial disclosure between the parties prior to entering into the terms of the agreement.
- Each party has the right to independent legal advice prior to entering into the agreement.
- In the case of pre-nuptial/pre-civil partnership agreements, the pre-nuptial agreement should be entered into no later than three weeks prior to the date of the marriage/civil partnership.
- The pre-nuptial agreement should include the provision for review at certain future points.
What would I put in a pre-nuptial agreement?
The agreement would be tailored to your own individual needs and circumstances. That is the benefit of obtaining bespoke professional advice rather than a cheap online form. Many of our client’s ask us to encompass the following matters in their agreements but their content is entirely down to you:
- Ownership of assets/property acquired pre/post marriage in one person’s sole name
- Ownership of assets/property in joint names
- Ring fencing any pre-marital contributions/trust related assets/business interests
- How inheritances/gifts are to be treated
- Whether any maintenance will be paid by one party upon marital breakdown and, if so, how long and how will that be negotiated
- How will the interests of minor dependent children be met
- Will pensions be shared/nomination of death in service benefits
- Entitlement to cash savings/policies/other assets
- Cars/valuable items/contents
- How will debts be treated
- What will happen on the death of either party
- When will the terms of the agreement be reviewed
Speak to a specialist in our family team for a no obligation chat to see how you can ensure your current and future assets are protected by creating an agreement that is fair and reasonable.
You could get an idea of whether a pre nuptial agreement could be worthwhile by using our prenuptial calculator.
Find out what other services we offer at our Leeds solicitors.
Protecting Family Business Assets with a Pre-Nuptial Agreement
John, a successful business owner, was about to marry Emily, a teacher. John wanted to ensure that his family business, which had been in his family for generations, would remain protected in the event of a divorce.
The challenge was to create a Pre-Nuptial Agreement that would protect John's business assets while also being fair to Emily and providing for her needs.
Winston Solicitors worked closely with both parties to draft a comprehensive Pre-Nuptial Agreement. The agreement specified that John's business assets would remain his sole property, while also ensuring that Emily would be financially secure through other assets and joint savings. The agreement also included clauses for periodic reviews to account for changes in financial circumstances such as the birth of children.
Both John and Emily felt the agreement was fair and equitable, providing them peace of mind as they entered into their marriage and giving certainty for the other business owners.
Navigating Second Marriages and Complex Assets
Sarah and Mark, both in their 50s, were planning to marry. Each had children from previous marriages and significant assets, including property and retirement accounts.
The couple wanted to ensure that their assets would go to their respective children while also providing for each other.
Our team at Winston Solicitors crafted a detailed Pre-Nuptial Agreement that outlined the division of assets, including provisions for their children and future grandchildren
Sarah and Mark entered their marriage with a clear financial plan, ensuring a harmonious blending of their families and assets to avoid later disputes between any elements of their blended family.
Pre-Nuptial Agreements primarily focus on financial aspects so they generally do not dictate terms for child arrangements (sometimes referred to as custody) but they can cover the issue of child maintenance or support and other child related financial issues such as payment of one-off expenses or longer term outgoings such as school fees. The child arrangements are usually determined by the court based on the best interests of the child.
If a Pre-Nuptial Agreement is not updated, the original terms will stand. However, it may not account for changes in financial circumstances, assets, or family structure, which could lead to complications in the event of a divorce some years later as there could be an argument as to how relevant the Pre-Nuptial Agreement is. This will be less relevant if the divorce is within a relatively short time frame of the Agreement or the Pre-Nuptial Agreement is entered into by parties entering into a marriage later in life
It is recommended that a Pre-Nuptial Agreement be finalised at least four weeks (ideally longer) before the date of the marriage or civil partnership. This helps ensure that both parties have adequate time to review the agreement and seek legal advice.
Yes, a Pre-Nuptial Agreement can be updated or modified after marriage through a Post-Nuptial Agreement. It's often advisable to include provisions for future reviews in the original Pre-Nuptial Agreement.
A Pre-Nuptial Agreement can include provision for various types of assets, such as real estate, savings, investments, and even future inheritances. The agreement can be tailored to meet the specific financial circumstances of both parties.
There is no time bar if you wish to marry in England or Wales but you will need to check the country in which you intend to marry but you must be divorced and have your Final Order (previously known as Decree Absolute).
Research tells us that arrangements agreed between the parties are much more likely to succeed if they are made by consent. However, where one parent does not agree to those arrangements we can suggest alternative ways of reaching a resolution for your children for example, you may need to try mediation, arbitration or ultimately court proceedings to help you sort these arrangements.
These are the court proceedings that can be issued following a divorce/dissolution which will ultimately provide orders for a financial settlement.
This is a specific type of court application that is available to request an order to provide financial assistance for children from a party.