Pre & Post-Nuptial Agreements Solicitors
A pre-nuptial agreement is a formal written agreement entered into by two parties in expectation of marriage. The agreement will set out the ownership of assets, including houses, land, investments and personal items, and how these will be divided in the event that the marriage breaks down.
This type of agreement is of particular value in relationships where one party owns assets which are not easily divided (say a farm or other land holding, or business assets), or where there is an expectation that an asset will be preserved and passed down to the next generation. They are also useful where there is a substantial disparity in pre-marital wealth, or where one or other party expects an inheritance which they wish to “ring- fence”.
Pre-nuptial agreements are not binding on the Court but since the decision of the Supreme Court in Radmacher v Granatino  UKSC 42, such agreements are awarded substantial weight when considering financial provision on divorce. However, they may still be varied or ignored altogether if they are fundamentally unfair to one or other party, and an agreement which is fair at the commencement of the marriage may become unfair if the parties’ circumstances change substantially over time, because say children are born or one party suffers ill health. For this reason it is important to periodically review any such agreement to make sure that it remains fair and enforceable.
For the agreement to be valid both parties its terms must be clear and both parties must have received independent competent legal advice. There must be full and frank financial disclosure from both parties before the pre-nuptial agreement is drawn up and it should be signed not less than 28 days before the marriage, to avoid any suggestion of coercion.
A post-nuptial agreement serves the same function as a pre-nuptial agreement, namely to regulate how the parties’ assets are to be divided in the event of divorce. As the name suggests however, post-nuptial arrangements are entered into after marriage has already taken place.
To be valid, a post-nuptial agreement must have been entered into after full financial disclosure has been made, and after both parties have received competent legal advice. As with pre-nuptial agreements, as long as these formalities are complied with, the courts tend to uphold the bargain made between the parties, unless it would be fundamentally unfair to do so.
Once it is executed the agreement it is valid and will have to be taken into account on divorce. It may be set aside however if there is fraud or coercion, or if the parties’ circumstances change substantially so that it is no longer fair.
Currently, nuptial agreements are not binding on the Court, although they will be given substantial weight as long as they satisfy the criteria specified above. However, the Divorce (Financial Provision) Bill, a private member’s bill introduced in the House of Lords in Spring 2018, seeks to establish a legislative framework for nuptial agreements which will make them binding upon the court. The bill does not currently enjoy government support so it is unlikely to become law, but there is undoubtedly a clamour for greater certainty in financial cases, and there is a clear momentum towards making nuptial agreements irrevocable.
The cost is dependent on the complexity of the nuptial agreement sought and the extent of negotiations with the other party over the terms. We will be able to discuss the matter with you further when you attend for your initial consultation.
We would always advise that you consider the terms of your nuptial arrangement following a major life event, such as the birth of a child or acquisition of an inheritance. This will ensure that the terms of your nuptial agreement remain relevant and fair.
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