Kirsty Henderson discusses After the Ink Dries: Life Beyond Your Prenup

When entering into marriage, it is important to take practical steps to preserve the integrity of your separate property and to protect the effectiveness of your pre-nuptial agreement. Whilst such agreements can provide a strong framework, their enforceability can be strengthened by careful record-keeping, prudent asset management and timely reviews. The following guidance outlines best practices to ensure your separate property remains clearly identifiable and your agreement continues to reflect your circumstances fairly.

Keep Records
Maintain clear, contemporaneous records of all major financial transactions to establish a paper trail evidencing your separate property. This may include receipts, invoices, bank statements, copies of wills or other documents transferring assets to you. Such records will help demonstrate which assets are owned by you alone or were acquired from a separate source.

Keep Your Assets Separate
Although a pre-nuptial agreement can ringfence your separate property even if it is mixed with your spouse’s assets, it is preferable to keep them entirely distinct wherever possible. For example:

• Keep funds in a separate bank account held solely in your name.
• Ensure property or other valuable assets are registered in your sole name rather than jointly.

Avoid mixing your separate property with joint property. For instance, do not use separate funds to purchase an asset in joint names or transfer money from a solely-hold account into a joint account. Do not place inherited assets into reducing the mortgage on the family home either (irrespective of whose name the family home may be held in – as the family home is often treated differently by the courts as a shared asset irrespective of source)Mixing assets in this way may undermine their separate status and open the door to one spouse suggesting that the asset has become ‘matrimonialised’.

Review Your Pre-Nuptial Agreement and Consider a Post-Nuptial Agreement
Well-drafted pre-nuptial agreements are designed to stand the test of time. However, life events (such as the birth of children, receipt of significant gifts or inheritances, or business growth) may affect their fairness. Since the fairness of an agreement is assessed at the point of divorce rather than when it was signed, you and your spouse should review your agreement after these and any major life changes.

In many cases, a short post-nuptial agreement can reaffirm the terms of the original pre-nuptial agreement, confirming that both parties still consider the terms fair. In other situations, it may be necessary to amend or renegotiate certain provisions to reflect new circumstances.

A post-nuptial agreement should also be considered if your pre-nuptial agreement was signed less than 28 days before your wedding. Reaffirming the same terms through a post-nuptial agreement, signed at a more neutral time, reduces the risk of later challenges based on claims of duress or undue pressure. Even a brief agreement of one or two pages can be effective in strengthening the enforceability of your arrangements.

Key Takeaways  
Pre-nuptial agreements are valuable tools for protecting separate property, but their strength will also depend on how they are managed over time. By keeping detailed records, avoiding the mixing of assets, and reviewing or reaffirming your agreement as circumstances evolve, you can significantly reduce the risk of future disputes. Those proactive steps not only safeguard your assets but also provide clarity and reassurance for both parties, ensuring that your agreements remain fair and enforceable in the long term.

Should you need any advice about pre-nuptial or post-nuptial agreements, we at Dawson Cornwell would be happy to assist you with this. Please do not hesitate to contact us on  +44 (0)20 7242 2556 or at mail@dawsoncornwell.com.

Kirsty Henderson

Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.