Pre-nuptial and post-nuptial agreements

Barber & Co have expert pre-nuptial and post-nuptial agreement lawyers in Preston, Darwen and Ramsbottom. Whether you want to draw up a pre or post nuptial agreement, or are seeking legal advice before signing, we can help.

What is a pre-nuptial agreement?

Also known as a pre-nup, premarital agreement or prenuptial contract, a pre-nuptial agreement is an arrangement entered into by a couple before they get married. The idea is to determine what will happen to assets, children and maintenance should the marriage end in divorce.

Couples normally do this when one-half or both are bringing in assets or wealth that was acquired before the marriage. Pre-nups are also becoming more common for second marriages, as one-half or both are likely to bring previously acquired wealth into the marriage.

What is a post-nuptial agreement?

A post-nuptial agreement is entered into once you are already married. Some couples have a post-nuptial agreement drawn up if they have previously separated. A post-nuptial agreement is similar to a pre-nuptial agreement – where the couple is deciding what should happen if the marriage was to legally end.

Why should I get a pre-nuptial agreement?

Under UK law, the courts have a wide discretion to deal with finances during divorce proceedings. You should consider a pre-nuptial agreement in the following circumstances:

  • If you wish to protect assets owned before you marry such as inherited wealth, business or trust interests.
  • You want to provide evidence of what assets were brought into the marriage. Assets brought into the marriage are known as non-matrimonial property and are less likely to be divided equally.
  • Having a pre-nup means it is less likely you will have to endure long court battles and spiralling legal fees.
  • If you want to be clear about the financial agreements in a divorce.

Pre-nuptial and post nuptial agreements in UK law

If you decide to take a pre-nuptial agreement, this should be discussed well ahead of your marriage. Pre-nuptial and post-nuptial agreements are not necessarily legally binding. The courts do have the discretion to rule what they think to be fair and this may mean not upholding the agreement.

In 2010 a landmark case, Radmacher v Granatino, affected the way pre-nuptial agreements are handled in the UK. The case was decided by the Supreme Court, the UK’s highest court, and it stated that pre-nuptial agreements should be given decisive weight in divorce proceedings – as long as both parties have entered into the agreement freely, fully appreciate the implications and the terms are reasonable.

When in court, a judge will consider the following:

  • Did both parties have independent legal advice from pre-nuptial lawyers before the agreement was signed?
  • Did both parties make full disclosures of the financial circumstances and other relevant matters at the time the agreement was signed?
  • Was the pre-nup signed under undue pressure?
  • Do the terms of the agreement meet everyone’s needs including those of your children?

While a pre-nup is not necessarily legally binding, when entering into one, it’s best to expect that it will be upheld if you were to divorce. It is paramount that you take independent expert legal advice before signing any such agreement.

Will a pre-nuptial and post-nuptial agreement protect my wealth?

As pre-nuptial and post-nuptial agreements are not legally binding, there is no guarantee that your wealth is protected. While it might sound unromantic, the best way to protect your wealth is to not get married at all. The law relating to separating unmarried cohabiting couples is vastly different to the law relating to married ones.

If you do wish to get married, getting a pre-nuptial agreement is increasingly becoming the best option; especially if you are marrying again or later in life and you wish, for example, to ring-fence certain assets for your children from a previous relationship. Other ways to protect your wealth is to keep assets separate in your sole name or through a trust.

If you would like expert personalised legal advice with qualified pre-nuptial and post-nuptial agreement contact Barber & Co today.