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.
To regulate your affairs on marriage or on remarriage. This can include agreeing how assets are to be dealt with during the marriage, on separation and divorce. One example is where a couple are engaged to be married. They had each been married previously and have children from those marriages and also assets such as property and savings. They may both agree that during their marriage they will keep their assets separate and in the event of separation they would retain their own assets for the benefit of themselves and their children in the future.
It is very important to consider a Pre-Nuptial Agreement well in advance of the intended date of marriage. Ideally, such an Agreement should be finalised and signed no less than 21 days before the wedding. We would suggest that advice should be taken on this issue at least 6 months before the date of the wedding which gives you both sufficient time to consider the terms of the Agreement and to take advice from solicitors.
If you have already married and want to provide for what should happen to your assets you can enter into a Post-Nuptial Agreement at any point.
There is no doubt that discussing what should happen in the event of separation can be difficult but it is important to consider whether it would be sensible to enter into a Pre-Nuptial Agreement. The outcome would be that, in the unfortunate occurrence of divorce, both spouses will have protected the assets that they had built up or acquired prior to the marriage, providing certainty for the couple and their wider family.
Provided you have both given full information about your finances and have taken advice from solicitors, it is likely that a Pre-Nuptial Agreement will be upheld by the Court. In some circumstances courts can vary the contents of such an Agreement if the marriage has been a long one and circumstances have changed significantly since marriage. Even in such circumstances the Agreement can be influential on the outcome. Provision can be built in for the Agreement to be reviewed.