Pre and Post Nuptial Agreements

It is an agreement which records your intentions as to how your finances will be arranged during your marriage, and what will happen to the finances should your marriage permanently break down. A pre-nuptial agreement is entered into before the marriage and a post-nuptial agreement after parties have married. Post-nuptial agreements are sometimes used by couples that either did not know about, or did not have enough time, to enter into a pre-nuptial agreement before they were married.

There are certain key features that you would expect to find within such agreements. They include:

• An explanation as to why you are entering into the agreement and your intentions;
• Financial disclosure by you and your partner;
• Details of the pre-marital assets or inherited assets that you wish to ring-fence;
• Details of how you intend to deal with matters such as joint assets, liabilities, or gifts;
• Details as to how your finances are going to be regulated during your marriage;
• Details of the agreed financial provision on the permanent breakdown of your marriage (e.g. any arrangements relating to income, capital or pensions);
• Your position in relation to children (i.e. whether you or your partner already have any children? and/or whether you intend to have any children during the marriage?), and details of the financial provision for your children;
• Financial provision should either you or your partner die during the divorce proceedings but before the conclusion of a financial arrangements;
• Possible mirror agreements for matters with multijurisdictional elements.

If you are considering entering into a pre or post nuptial agreement, you should be aware of the key requirements and safeguards expected by the Court, as reinforced by the Law Commission in their recommendations in February 2014.

They are:

• That there has been full financial disclosure between you and your partner;
• That you each have sought separate independent legal advice concerning the terms of the agreement;
• That neither of you has been put under any pressure or duress or misrepresentation to agree to the terms of the agreement; and
• In the case of a pre-nuptial agreement, that the agreement is signed at least 28 days prior to your marriage ceremony.

In order for your pre or post nuptial agreement to stand the best chance of being upheld by the Court, it is imperative that the above pre-requisites are met.

Pre-nuptial and post-nuptial agreements are not binding. The Courts continue to have an overriding discretion when it comes to the distribution of capital and income following the breakdown of a marriage. The Courts will however, give weight to an agreement if it has been “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.” [Radmacher v Granatino [2010] UKSC 42 (para 75)].

The issue of ‘fairness’ is key when it comes to whether such agreements are going to be upheld by the Court. In order to be considered ‘fair’ the agreement must provide for both yours and your partner’s needs and those of any children. The agreement must also consider the principles of compensation and sharing.

Additionally, the Court will expect to see the key requirements of financial disclosure, independent legal advice, no undue pressure or duress or misrepresentation to be evident in the agreement. In the cases of pre-nuptial agreements they will also expect to see that the agreement was not signed just before the marriage ceremony. Failure to meet these key requirements may result in the agreement being considered unfair and as such not binding. This technicality is important to you if you are seeking to enter into an agreement that will stand the chance of being upheld. In the circumstances it is advisable that you seek advice from our specialist team as soon as possible.

It is still possible to have a Pre and Post Nuptial agreement covering assets which are located outside of England & Wales. However, it is important to consider whether a further Pre and Post Nuptial agreement will be necessary in the other jurisdiction. This will be dependent on several factors.