A pre-nuptial agreement is also known as a pre-nup. It’s a formal, written agreement between two partners prior to their marriage.
It sets out ownership of their belongings including money, assets and property and explains how it will be divided in the event of the breakdown of their marriage.
Pre-nuptial agreements are perceived by some to be unromantic. However, a pre-nup can save time, expense and acrimony should the marriage subsequently break down.
What are post-nuptials?
Post-nuptial agreements, or post-nups, are essentially the same as prenuptial agreements but are formed after the marriage or civil partnership has taken place.
What is the aim of putting an agreement in place?
Both pre-nups and post-nups consist of a contract, entered into by a couple, setting out their wishes on how the assets of each party, including property, savings and pensions, should be distributed in the event of a divorce, dissolution of civil partnership or death of either party.
The aim is to try to keep assets separate. This is rather than allowing them to become mixed together in the ‘matrimonial pot’ – and consequently to minimise the possibility of divorce-related financial disputes ending up in court.
Currently post-nuptial agreements are not legally binding in the UK. Courts are not forced to follow the instructions contained in post-nups or pre-nups. But they will take factors into account at the time of separation, as well as the needs of any children of the marriage.
The court will determine how assets should be divided notwithstanding the terms of any post-nuptial agreement.
However, it is likely that the court will generally take pre-nuptial or post-nuptial agreements into account. This means they can still be very useful.
Supreme Court guidance
The Supreme Court case of Radmacher v Granatino provided guidance for family courts to follow when deciding whether to enforce these agreements.
‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’
This means it is important that you have both taken independent legal advice before entering into such an agreement.
Both parties should understand the full extent of any financial claims they might be giving up by signing an agreement. They should also realise the extent of the financial position of the other.
The needs of both parties and the children will need to be considered. Ultimately, this approach aims to achieve fairness and certainty to couples. It also alleviates any potential disputes that may arise.
Preparing pre-nuptials
The experienced team at Marsden Rawsthorn offers guidance on preparing pre-nuptial and post-nuptial agreements. Whether you are planning to marry or have already married, or are cohabitating, we can prepare agreements for couples who choose to live together.
Properly written, legal agreements help to protect property and assets in the unfortunate event of the death of a partner or the breakdown of the relationship and separation.
Why choose Marsden Rawsthorn?
Marsden Rawsthorn has a well-established team of highly-skilled solicitors.
The Family Team is sensitive to the difficult situations you may face. Our staff recognise your needs and circumstances are unique. We aim to achieve the very best outcome for you.
Our focus is on finding the best situation to help you move forward.
If you would like to arrange an appointment with our Family Team contact 0800 294 4410 or alternatively, email: info@marsdenrawsthorn.com
Article by Lyndsey Kiley, Family Law Team
