Pre and post-nuptial agreements
What is a pre-nuptial agreement?
A pre-nuptial agreement (or premarital agreement) is a written agreement made by a couple who intend to get married, or enter into a civil partnership, which specifies the financial settlement which would be made in the event that they divorced or their civil partnership is dissolved. It is signed by the couple before the marriage takes place.
What is a post-nuptial agreement?
A post nuptial agreement is a written agreement made by a couple, any time after the date of the marriage or civil partnership, which specifies the financial settlement which would be made in the event that they divorced or their civil partnership is dissolved. Successive post-nuptial agreements can be made during the course of the marriage or civil partnership to reflect changes in the couple’s circumstances.
Are pre-nuptial agreements legally binding?
Pre-nuptial agreements are quite common and enforceable by the courts in some other jurisdictions such as the USA and some European countries.
However, under the laws of England & Wales, prenuptial agreements are not legally binding in the courts.
Why have a pre-nuptial agreement?
Although pre-nuptial agreements are not legally binding in the courts of England & Wales, they may still be of value in the event of a divorce. The existence of a pre-nuptial agreement is one of the factors which would be taken into account by the courts. For this reason, an increasing number of couples are choosing to enter into pre-nuptial agreements.
Pre-nuptial agreements are common where one party has substantial wealth which they want to protect in the event of the marriage or civil partnership failing. But often couples simply wish to agree to exclude assets which they have inherited or are expecting to inherit, or to protect a business which they own or to protect their assets, for the benefit of existing children, or a second marriage. Some couples simply want to clarify what would happen if they divorced. They feel that a pre-nuptial agreement is likely to minimise disagreement if they separate.
What to do if you are considering a pre-nuptial agreement
There are certain specified safeguards which the couple should adopt for the courts to place appropriate weight on the terms of such an agreement. One of the most important of these is that they should each have received independent legal advice, from separate solicitors, before they entered into the agreement. It is also advisable that the pre-nuptial agreement is signed not less than 21 days before the wedding or civil partnership itself.
If you are considering a pre-nuptial agreement therefore you should consult a specialist solicitor as soon as you can after you have become engaged, so that you can start the process of discussing with your future spouse, and negotiating with their solicitor, the terms to be included, in good time before the date of the wedding or civil partnership.
What will drawing up a pre-nuptial agreement involve?
Some people imagine that pre-nuptial agreements, in England & Wales, are simple "off the shelf" documents. However, although some clauses may be standard, every pre-nuptial agreement is a bespoke document tailored to that couple’s specific needs and is only effective where there has been full, formal, written disclosure by each to the other of their respective financial positions and assets. Some pre-nuptial agreements will be simpler than others, but some can be highly complex.
What terms might a pre-nuptial agreement include?
A pre-nuptial agreement will normally list all the assets owned by each party specifying what is to happen to them in the event of a divorce or dissolution of civil partnership. It may state what is to happen to the couple’s home, and to the contents and other chattels, whether there should be an order for pension sharing, whether there is to be any spousal support paid and, if so, at what level and for how long, or it may provide for spousal support claims to be dismissed from the outset. It may provide that the settlement changes after a specified number of years or in the event of the couple having children.
The agreement may include any provision which might be ordered by the court from arrangements for any children
to provision for a divorce financial settlement
to spousal maintenance
and child maintenance
What happens if I don’t have a pre-nuptial agreement?
In the absence of a pre-nuptial agreement, there will be no restriction on the orders which a court might consider appropriate to make in the event of the marriage or civil partnership breaking down. The parties’ claims will be decided by reference to divorce law as it stands at the time of the divorce or dissolution of civil partnership.
Why Dawson Cornwell?
Our firm has been drafting pre-nuptial agreements for many years. With departments specialising in children and financial issues, we are able to make sure that any pre-nuptial agreement is personalised to meet your needs and those of any children.
The negotiation of the terms of a pre-nuptial agreement need particularly sensitive handling. We are highly experienced in doing this, including offering this by the collaborative process