What is a pre-nuptial agreement?
A pre-nuptial agreement is a legal agreement made between two individuals before their marriage has taken place. The agreement usually sets out how the couple wish their assets to be divided between them if they later separate or divorce.
Individuals who are planning to become civil partners can also enter into a legal agreement before the registration of their civil partnership. These agreements are often referred to as pre-civil partnership agreements.
What is a post-nuptial agreement?
A post-nuptial agreement is a legal agreement made between individuals who are already married. The agreement usually sets out how the couple wish their assets to be divided between them if they later separate or divorce.
Civil partners can also enter into a post-nuptial agreement, usually referred to as a post-civil partnership agreement.
Pre-nuptial agreements – who are they for and why do people enter into them?
‘Pre nups’ are often thought to be for rich and famous, however, an increasing number of couples are entering into pre–nuptial agreements. This upward trend is due in part to the fact that more marriages are ending in divorce. Couples therefore see the benefit in agreeing financial matters before a potential relationship breakdown to avoid costly, lengthy and emotionally draining court proceedings at a later stage.
Avoiding acrimonious divorce proceedings is one of the main reasons for entering into a pre-nuptial agreement. Other reasons include:
- You have substantial assets/wealth that you wish to protect
- The protection of inheritance or future inheritance
- If one of the parties has been previously married and wishes to protect certain assets
- If you have children from a previous relationship and want to ensure assets are protected for the children
- If you have a business and wish to retain control of the business.
Pre-nuptial agreements are still not legally enforceable in England and Wales, however, following the landmark case of Radmacher v Granatino in 2010, judges are increasingly likely to uphold the terms of a pre-nuptial agreement in the event of a dispute, provided they adhere to certain formalities and are not deemed to be unfair at the time that the parties get divorced.
A three-stage test must be met:
- It must be freely entered into by each party
- Each party must have had a full appreciation of its implications
- It must not be unfair to hold the parties to the agreement made
A pre-nuptial agreement is therefore likely to be given weight by the court where the parties have provided financial disclosure, the agreement has been entered into well in advance of the marriage, there is no undue pressure to sign the agreement, and both parties have had independent legal advice. It is imperative that that a pre- or post-nuptial agreement is properly drafted by a specialist lawyer to ensure enforceability. At Edwards Duthie Shamash, we have a matrimonial finance team who are experts in this field.