Couples are increasingly entering into pre-nuptial and post-nuptial agreements to protect their assets if the marriage breaks down. A nuptial agreement records the couple’s wishes and intentions regarding their financial affairs and can provide certainty should the relationship end. This can help to avoid disagreements over the finances at an already difficult time, providing certain formalities have been followed when preparing the agreement.

Our team of expert divorce and family lawyers can help you draw up a pre- or post-nuptial agreement that will provide clarity if you and your partner get divorced.

What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement made by a couple before they marry or enter into a civil partnership, which sets out how they wish their assets to be divided if they divorce or have their civil partnership dissolved.

A post-nuptial agreement is also entered into to protect assets, only it is drawn up once the couple is already married or has entered into a civil partnership.

Pre- and post-nuptial agreements typically cover:

• Protecting inherited money, pre-marital assets, savings or investments
• How assets will be split if you divorce
• How debts will be treated on divorce
• Whether there will be provision for maintenance or pension sharing

What is the difference between a pre-nuptial and post-nuptial agreement?

The difference lies in the timing of when the agreement is entered into.

A pre-nuptial agreement is an agreement entered into before the marriage, whereas a post-nuptial agreement is entered into after the marriage has occurred.

What should be included in a nuptial agreement?

Pre-nuptial and post-nuptial agreements typically include a schedule of each of the parties’ assets and how these assets will be divided on divorce or dissolution.

The agreement will usually provide for:

• Property and other assets held in joint or sole names
• Savings held in bank accounts
• Premium bonds, stocks and shares and other investments
• Inheritance
• Pensions
• Income/provision for maintenance
• Business interests

Why should I get a pre-nuptial agreement?

If you are planning on getting married and would like to record how you and your partner wish your property, finances and assets to be divided in the event of divorce, you should consider a pre-nuptial agreement.

If you are planning on entering into a civil partnership, you can have a pre-civil partnership agreement drawn up.

If you are already married or in a civil partnership, you can achieve this with a post-nuptial agreement or post civil partnership agreement.

A pre-nuptial agreement can:

• Protect or ‘ring-fence’ assets acquired by each party before the marriage, including inherited property
• Protect business or asset trusts in the event of divorce
• Set out whether either of you will pay or receive any maintenance from the other and, if so, for how long
• Set out how assets and finances will be divided in the event of divorce, including the marital home
• Set out an agreement as to the division of chattels (furniture, art, etc) on divorce
• Make provision for any family pets on divorce

Are pre-nuptial agreements legally binding?

Nuptial agreements are currently not legally binding in England and Wales. The court will not automatically enforce the agreement when deciding on a financial settlement upon divorce; however, nuptial agreements can be highly persuasive and may be upheld depending on the facts of each case.

As the law currently stands, the court should give effect to a nuptial agreement that is freely entered into by both parties with a full appreciation of its implications unless it would be unfair to hold the parties to their agreement in the prevailing circumstances.

The court will consider the fairness of upholding any particular agreement on a case-by-case basis. The court will take into account several factors, including the welfare of any minor children of the relationship, the capital and income resources available to the parties, the financial needs of each party, the age of the parties and duration of the marriage, the standard of living enjoyed by the parties, and each party’s financial and non-financial contributions to the marriage.

Can pre-nuptial agreements be changed once you are married?

No, once a pre-nuptial agreement has been made and agreed upon by both parties, it cannot be changed. However, both parties can agree to vary its terms with an additional post-nuptial agreement and make provision for this later agreement to supersede the earlier agreement.

How we can help with pre-nuptial and post-nuptial agreements

To give the best chance that the court will uphold your pre- or post-nuptial agreement, you should have the agreement drawn up by a qualified divorce and family law expert.

You should also both seek legal advice before signing the agreement, provide financial disclosure of property and other assets and ensure that you fully understand the terms of the agreement and the implications of entering into it.

Increasingly, cross-jurisdictional issues need to be considered when dealing with pre-nuptial and post-nuptial agreements. We can assist with these cases as we have strategic partnerships with law firms in other jurisdictions, and a number of our partners are members of the International Academy of Matrimonial Lawyers.

To find out more and discuss your requirements, please get in touch.

Meet the Divorce and Family team

Our Divorce and Family team at Stewarts is the UK’s pre-eminent divorce and family practice, ranked number 1 in both The Legal 500 and Chambers.

What are the next steps?

We know that discussions about pre-nuptial and post-nuptial agreements can be sensitive. We take great care to adapt our approach to your individual circumstances, helping you reach an agreement that will meet your specific requirements.

To find out how we can help you or to discuss your circumstances, please get in touch.