Pre & Post Nuptial Agreements
Pre-Nuptial Agreements
Pre-nuptial agreements are useful financial planning tools that document how married couples and civil partners would like their property to be divided in the unfortunate event of the breakdown of their relationship. The contents of the agreement can vary widely depending on the individual circumstances and concerns, but often include provision for the division of property and maintenance.
Although pre-nuptial agreements are currently not legally binding in the UK, the Supreme Court ruling in the case of Radmacher in October 2010 has changed the way in which pre-nuptial agreements are viewed.
The Supreme Court stated that pre-nuptial agreements should be given decisive weight in divorce proceedings, provided that the parties entered the agreement freely and that they have a full appreciation of the implications of the agreement.
The court also decided that in future, courts would infer that parties entering into pre-nuptial agreements governed by English law, intend them to be binding.
However, the court also stated that they would not uphold any agreement if the prevailing circumstances made it unfair to do so.
Therefore whilst pre-nuptial agreements are not formally legally binding, they have now been clarified to a large degree by the highest court in English law. They are a clear record of the parties' intentions and should be upheld, provided they have been entered into freely, the parties fully appreciate the implications and they are reasonable.
The Law Commission is due to report in 2012 on whether a change in the law should be enacted to ensure pre-nuptial agreements are fully enforceable. A draft bill is expected to be introduced in parliament in late 2012 with the prospect of new law in 2014.
Until then, the Supreme Court ruling provides clear guidelines for those wishing to protect family or personal wealth before entering into marriage.
Pre-nuptial agreements are becoming standard practice before marriage, and far from being unromantic, they are a necessary part of sensible personal financial planning.
For more details and to download a brochure, please click here.
Post-Nuptial Agreements
A post-nuptial agreement is an agreement made between two parties dealing with provision for maintenance, children and division of property in the event of the marriage breaking down.
An agreement will be exactly the same as a pre-nuptial agreement, but is entered into after marriage and prior to separation.
Traditionally, post-nuptial agreements not considered to be legally binding. However, in the 2008 case of MacLeod -v- MacLeod, a court held that if parties enter into a post-nuptial agreement, and the conditions of obtaining legal advice and financial disclosure are met, the mere fact that the agreement is not what a court would have ordered is not enough to set the agreement aside. It would appear that post-nuptial agreements, when properly executed, can be binding and best practice advice for those considering marriage is to enter into both a pre and post-nuptial agreement, as was the situation in the MacLeod case.
The Supreme Court in Radmacher have clarified the situation further and whilst the courts will infer that parties' entering post-nuptial agreements intend them to be binding, the court will still refuse to uphold such agreements, if the prevailing circumstances make it unfair to do so.
Best practice advice is therefore to ensure that a pre-nuptial agreement is entered into prior to marriage, which is then varied and reviewed as a post-nuptial agreement, with regular updates and review periods built in throughout the marriage. This will keep the agreement current and will maximise the possibility of the court giving it decisive weight in any future divorce.
We offer pre and post-nuptial agreement packages to those wishing to protect their assets.
For more details and to download a brochure, please click here.
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