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Family Law

Pre and Post Nuptial Agreement Solicitors

In the world of Family Law, the terms "pre-nuptial agreements" and "post-nuptial agreements" often evoke notions of exclusivity and wealth. However, they are designed to extend far beyond the domains of the rich and famous, and are becoming increasingly popular amongst those from various walks of life, serving as vital tools if you are seeking to safeguard your assets in the event of your marriage ending. 

Pre-nuptial agreements

There are several reasons why a pre-nuptial agreement would be a sensible course of action before you marry:

  • A pre-nuptial agreement is useful for all couples but especially for those who are marrying in later life.  There may be significant accumulated wealth or pension funds, which the parties wish to protect for their own future or to pass on to their children.
  • If one party has built up a business, he/she may wish to exclude that business from any potential claims by the other spouse.
  • Sometimes parents contribute towards a property purchase for the couple. In this situation, a pre-nuptial agreement can provide that any financial contribution by other family members should be returned or shared by the couple should the marriage break down.

These are the sort of provisions which can be included in a pre-nuptial agreement, however there are many scenarios that can be covered, all of which we can discuss with you. Without a pre-nuptial agreement, you could end up in a financial dispute which can only be rectified with Mediation, Collaborative Law or a lengthy Court battle.

What can be included in a pre-nuptial agreement?

A pre-nuptial agreement can set out what is to happen to:

  • Any property owned
  • Capital
  • Investments
  • Pensions
  • Income
  • Any inheritance you have had or will have in the future
  • Possessions and valuables

A pre-nuptial agreement can also provide that one party is not responsible for the other party’s debts or liabilities.

When entering into a pre-nuptial agreement, we would recommend you begin by listing all of the assets you have, both jointly and solely, and then agree between you if and how they should be divided. You may wish to consider whether division would depend on the length of the marriage.

What cannot be included in a pre-nuptial agreement?

A pre-nuptial agreement cannot be used to set out arrangements for children e.g. when the children will see the other parent.   Such arrangements can be set out in a Child Arrangements Order which is subject to different legislation. A pre-nuptial agreement cannot be used to agree matters relating to lifestyle or personal matters.

Can a pre-nuptial agreement be changed during the marriage?

Some couples may feel reluctant to discuss entering into a pre-nuptial agreement believing that it shows a lack of trust in the other party.  However, many couples now see that it is a sensible precaution and can help to avoid unnecessary acrimony should the relationship break down.  A pre-nuptial agreement can be varied by agreement as the marriage progresses and can be converted into a post-nuptial agreement.  It is advisable to review both pre and post-nuptial agreements every few years or if there is a significant event such as the birth of a child.

When does a pre-nuptial agreement expire?

A pre-nuptial agreement doesn’t expire but lasts for the entirety of your marriage, subject to the changes referred to previously.

Post-nuptial agreements

While a pre-nuptial agreement is entered into before marriage, a post-nuptial agreement can be entered into any time after the marriage.  Often a couple will agree to convert a pre-nuptial agreement into a post-nuptial agreement upon review of the agreement after their marriage. 

Divorce settlements and pre or post-nuptial agreements

In the event that your marriage does break down, pre-nuptial agreements and post-nuptial agreements cannot override legislation or prevent a Judge from deciding on the appropriate division of assets on divorce. However, the agreements can be taken into consideration by the Judge.

The Supreme Court has set down principles which, if complied with, will result in the pre-nuptial agreement or post-nuptial agreement being considered relevant and therefore given "weight" by the Judge within divorce proceedings:

  1. The agreement must be freely entered into with no pressure placed on either party to sign.
  2. In the case of a pre-nuptial agreement, the longer before the ceremony it is signed, the better. The minimum recommendation is 21 days before. For a post-nuptial agreement there must not be any suggestion of coercion to sign.
  3. Both parties must have independent legal advice.
  4. Both parties must provide full, document financial disclosure of his/her assets prior to entering into the pre or post-nuptial agreement.
  5. It must be fair to hold the parties to the agreement within the pre or post-nuptial agreement in all the circumstances of the divorce. There is nothing inherently unfair about a pre or post-nuptial agreement seeking to ring-fence assets acquired by one party. Ensuring the pre-nuptial agreement or post-nuptial agreement provides for both parties’ needs is likely to be considered fairer.

If the Court considers the pre-nuptial agreement to be fair and it meets the financial needs of each party, the Court is more likely to uphold the pre-nuptial agreement than not. A pre-nuptial agreement therefore brings some certainty and a degree of financial protection should parties decide to divorce.

Contact our Family Law Solicitors

It is understandable that couples may not feel that they need a pre-nuptial agreement with their future spouse, however no-one knows what the future holds and it is always best to be prepared. To discuss your situation with one of our Family Law Solicitors based in our offices in Andover, Romsey, Salisbury, Totton or Witney, contact us today by using our Contact Form, calling your local office or emailing info@parkerbullen.com.