Prenuptial and Postnuptial Agreements
A prenuptial agreement (sometimes called a pre-nup or premarital agreement) is an arrangement entered into by a couple before their marriage. The agreement is designed to set out what should happen regarding any financial arrangements if the marriage ends.
The purpose of a postnuptial agreement (also called a post-nup or a post-marital agreement) is also to specify what should happen to each partner’s assets after divorce however, a postnuptial agreement is entered into by the couple after the marriage has taken place.
Nuptial agreements are most likely to be of benefit where one or both parties to the marriage already has a significant level of 'premarital assets'.
Prenuptial agreements have the benefit of providing clear evidence of who owned what at the point the parties married. The significance of this is that assets brought into the marriage can, in many circumstances, be disregarded when financial arrangements are being made at the time of a divorce. This is called non-matrimonial property. It is therefore less likely to be divided equally, because it is not the product of the marriage partnership.
Are prenuptial agreements legally binding?
Yes, unless the Court determines that upholding the terms of the pre or postnuptial agreement would be grossly unfair to one of the parties at the time of divorce.
This usually arises where there has been a change of circumstances which is not covered by the terms of the agreement, i.e. the birth of children, illness or injury, redundancy etc. The Court will scrutinise the agreement very carefully against the current situation to decide whether the agreement remains fair.
On divorce, financial applications can still be made to the Court, and the court’s power to resolve how assets should be distributed cannot be removed by a prenuptial agreement. However, the weight a court is now required to give to a prenuptial agreement is much more significant than it used to be.
When a financial application is made to the Court on divorce, the law requires that the Judge must consider “all the circumstances of the case”, and a prenuptial agreement is a “relevant factor”.
How will the Court decide whether a nuptial agreement should be binding?
The Court will take into account the following circumstances when deciding whether the parties should be bound by a nuptial agreement:
- Did each party have independent legal advice before signing the agreement?
- Did each party make full and honest disclosure of their financial position before signing the agreement?
- Was either party put under pressure to sign the agreement?
- Does the agreement fairly meet the needs of everyone (the parties and any children) in the circumstances at the time of the divorce?
Is there any point in having a prenuptial agreement if it is not legally binding?
Yes. A contractually sound agreement based on full disclosure and legal advice being taken by both parties will be given significant weight as a “relevant factor” of the case. If you are entering into a prenuptial agreement you should always expect to be held to its terms.
Does having a prenuptial agreement set a bad precedent for our marriage?
Some people may think that opting for a prenuptial agreement is equivalent to saying, from the outset, that the marriage is going to fail. However, research shows that disagreements about money are one of the most common causes of marriage breakdown. There is therefore a powerful argument for stating that couples who communicate effectively about financial issues at the outset of their relationship will have a stronger and healthier marriage going forward.
Can a prenuptial agreement ensure that my ex-partner gets nothing if we divorce?
No. The process surrounding the making of the agreement and the outcome it produces must always be fair and reasonable. It is very unlikely that an agreement will be upheld if it would leave one party destitute and the other in a strong financial position.
An agreement forfeiting a party’s right to make a financial application on divorce is also unlikely to be upheld.
If, however, both parties are starting the marriage from a position of reasonable financial independence, an agreement which seeks to give protection to each of them should be appropriate - bar any unforeseen events during the marriage that significantly change their circumstances.
Can a prenuptial agreement ensure that my ex-partner cannot get anything I have inherited during the marriage?
This will depend on whether the prenuptial agreement makes suitable and fair provision for your former partner’s needs. If it does, there is a good chance that a prohibition on any further sharing of assets could be upheld. Generally, however, it is unlikely that a prenuptial agreement that waives all inheritance rights will be seen by the Court as fair, as it has the potential to leave parties in a precarious financial position.
When should we discuss the terms of our prenuptial agreement?
The inherent stress involved in planning a wedding means that you should try and negotiate the terms of any prenuptial agreement as far in advance as is practicable, and well before the date of the wedding. There is much to be dealt with, including making full financial disclosure and taking legal advice.
There needs to be sufficient time for full financial information to be shared, as this gives the context in which to negotiate terms effectively. The more comprehensive the information, the more likely the Court will find that both parties were fully aware of the implications of the prenuptial agreement. There needs to be time for both parties to consider all of the information, agree terms and take independent legal advice. The more time spent on constructing and negotiating the agreement, the more likely it is that a court will decide that there was no pressure on either party and that the agreement was entered into freely, and therefore it is more likely to be upheld.
Essentially, the nearer to the wedding day the prenuptial agreement is completed, the greater the chance there will be for one party to seek to frustrate it on the grounds of duress or undue influence. At the very latest, any prenuptial agreement should be signed no less than 28 days before the wedding.
Should we also have a prenuptial and a postnuptial agreement?
Entering into a postnuptial agreement once you are married is a way to effectively ‘update’ a prenuptial agreement. It is always sensible to review an agreement at regular intervals to provide for any subsequent change in circumstances.
The legal position of a postnuptial agreement is exactly the same as it is for a prenuptial agreement. Provided there is full financial information and independent legal advice is taken by the parties, there is a strong chance that the agreement will be upheld by the Court.