How Valid are Pre and Post Nuptial Agreements?

07 December 2016

By Family Law & Divorce Solicitor Sarah Milner

When you are planning on getting married or entering into a civil partnership, the last thing you are probably thinking about is the relationship breaking down but the reality is, this is quite common. More and more people are wanting to protect themselves (and their financial assets) should this happen, particularly if they own assets before the marriage or civil partnership. They can do this by entering into a pre-nuptial or post-nuptial agreement.

What are Pre-Nuptial and Post-Nuptial Agreements?

Pre-nuptial agreements (or pre-nups as they are more commonly known) are made by people before the marriage or civil partnership takes place. The purpose of the pre-nup is to record the agreement reached between a couple in relation to what will happen to their finances, should the marriage or civil partnership breakdown.

A Post-nuptial agreement (or post-nup) does the same thing but it is entered into after the marriage or civil partnership has taken place.

What Can be Included in a Pre and Post Nup?

Pre and Post Nups usually deal with what will happen to the parties’ finances if the relationship were to break down but it can include anything you want it to, such as who will start the divorce or dissolution proceedings and when. Common things that are covered in the agreement are:

  • What would happen to property either of you brought into the marriage
  • What would happen to the family home
  • What would happen to any property given to you or inherited during the marriage
  • What would happen to joint assets
  • What would happen to your pensions
  • How would you deal with any debts
  • Would either of you pay or receive any maintenance and, if so, for how long

It is important that the agreement is reviewed every so often, particularly after any children are born, as the Court will take the children’s needs into account first when deciding on financial settlement and will not uphold an agreement that does not take this into account and would be detrimental to your children.

Are Pre and Post Nups Legally Binding?

Pre and Post Nups are not legally binding in England & Wales and so you may wonder what the point is in having one. Although the Court does not have to follow what is contained in the agreement when deciding on financial settlement, the Court will take the agreement into consideration.

See Divorce Court Upholds Pre-nuptial Agreement Settlement Amount.

The Court’s guidance on Pre and Post Nups is that they should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications unless the current circumstances would make it unfair on either of the parties to do so.

For a Court to properly consider the Pre or Post Nup, it is important that a number of steps are followed when preparing and entering into the agreement.

Both parties to the agreement must enter into it voluntarily, without undue pressure and be informed of its implications. It may be that the agreement you have reached is not what you would be entitled to under the law and parties need to be aware of this before signing the agreement.

It is therefore crucial that both parties have independent legal advice before signing the agreement. It is also important for both parties to make full disclosure of their assets (property, money in bank accounts, pensions and income) at the time of the agreement before signing the agreement.

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