Pre and Post-Nuptial Agreements
Pre-Nuptial Agreements and Post-Nuptial Agreements are contracts between people who intend to marry or have already married, dealing with what should happen to assets in the event of a divorce. They are often used if either person wishes to protect assets that they have built up before the marriage. They are more commonly used now and involve couples from all ends of the financial spectrum as many may have children from previous relationships and would wish to ensure they can make a Will providing a degree of certainty for their beneficiaries.
Traditionally, Courts in England and Wales did not see Pre or Post-Nuptial Agreements as binding. Their existence was considered by the Courts but in circumstances where the Court felt it appropriate, they may not have effected the outcome of a financial settlement on divorce.
The case of Radmacher -v- Granatino changed this in 2010. The Supreme Court, in that case, upheld a Pre-Nuptial Agreement. The general principle to be taken from the case was that where there has been full and frank financial disclosure and both spouses have taken independent legal advice, it is likely that a Pre-Nuptial Agreement will be upheld.
This case does not mean that Pre or Post-Nuptial Agreements are all to be held as legally binding. In that particular case the assets were worth many millions. In circumstances where there are fewer assets, the needs of the spouses and any children may take precedence over the agreement if proper provision has not been made for them.
If however consideration is given to potential issues which might foreseeably arise and the agreement is reviewed at agreed intervals, a Post-Nuptial Agreement could update the original agreement to reflect changed circumstances and give the couple the certainty they sought at the outset.
You might find this leaflet on pre-nuptial agreements, useful: