Pre and Post Nuptial Agreements

Pre and post nuptial agreements are becoming increasingly popular, as couples are becoming aware of the emotional, financial and family benefits of relationship planning.

Common situations where a nuptial agreement is worthwhile

The typical reason for having a nuptial agreement is where one or both parties have significant independent wealth and assets, and especially where such wealth is inherited or is likely to be inherited in the future.

Often, couples are keen to ensure that certain pre-owned assets are protected from division in the event of divorce, and in many cases couples are keen to ensure that there is an open dialogue about financial support during and after marriage which will minimise contention in the future.

Are nuptial agreements legally binding?

Whilst it cannot be said that nuptial agreements are yet legally binding in the English divorce courts, following a landmark case called Radmacher v Granatino in 2010, where it can be shown that a prenuptial agreement has been drafted and entered into appropriately and is deemed to be fair, the courts will give them “decisive weight” when determining finances on a divorce.  The Law Commission has also made strong recommendations that certain “qualifying nuptial agreements” should be introduced into the legal framework as legally binding in the future.

What factors give a nuptial agreement the strongest weight?

So as to satisfy the “decisive weight” fairness test above and keeping in mind the recommendations of the Law Commission, the following conditions should be met:

  • Each party must provide clear and full financial disclosure, ensuring the parties are entering into the agreement with their eyes open and with a full knowledge of the facts;
  • Each party must have the benefit of independent legal advice;
  • There must be no undue influence or coercion involved in the contemplation, negotiation or preparation of the agreement;
  • Ideally the agreement should be entered into and finalised at least 28 days before the marriage.

International nuptial agreements

It’s quite common for clients considering nuptial contracts to need advice on international matters. Couples may come from different countries, may be living and working in the UK but not born here, may have assets in different jurisdictions or have jobs which make it likely they may end up living abroad.

As with any contract with a potential international element, it’s possible and potentially advisable to expressly state that the agreement is intended to be subject to the jurisdiction of the English courts.

However, whether this will apply in reality depends on many factors and where there are international elements involved, it is important to consider how this should be reflected in the drafting of a nuptial agreement.  We can advise on your specific circumstances and the most suitable approach.

If you need advice on a pre-nuptial agreement or wish to have an agreement drafted, contact our family lawyers.

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