What are Prenuptial Or Postnuptial Agreements?
A prenuptial agreement is a contract that you and your partner agree to enter into before you marry/enter a civil partnership. It sets out what would happen to your property and finances if you were to divorce.
A postnuptial agreement is similar to a prenuptial agreement, except that you and you partner enter into the contract once you are married/in a civil partnership.
A pre-civil partnership agreement is a contract made between partners before they enter a civil partnership. It outlines how assets, finances, and other matters should be handled if the relationship breaks down.
Why Do I Need a Prenuptial Agreement?
Postnuptial and prenuptial agreements are increasingly worthwhile if you have assets that you want to ring-fence/protect against any future financial claims made by your spouse/civil partner. They are like an insurance policy and can also be used to protect assets likely to be received by way of future inheritance. They can also protect your interests if you are marrying or have married/entered into a civil partnership for a second or subsequent time.
Are Prenuptial Agreements Legally Binding?
Over the last five years, the higher courts in England and Wales have increasingly taken into account the provisions of postnuptial and prenuptial agreements in financial proceedings associated with marital breakdown. The court considers not why a party should be bound by them, but the burden is on the party proving why they should not be bound by them.
How Can I Make a Prenuptial Agreement Binding?
In order to stand the best possible chance of prenuptial agreements being upheld against any subsequent challenge, such an agreement needs to be entered into subject to legal safeguards, as set out in recent judgments of the courts. These include the following criteria:
- There has been an exchange of full and frank financial disclosure between the parties prior to entering into the terms of the agreement.
- Each party has the right to independent legal advice prior to entering into the agreement.
- In the case of prenuptial/pre-civil partnership agreements, the prenuptial agreement should be entered into no later than three weeks prior to the date of the marriage/civil partnership.
- The prenuptial agreement should include the provision for review at certain future points.
What Would I Put in a Prenuptial Agreement?
The prenuptial agreement would be tailored to your own individual needs and circumstances. That is the benefit of obtaining bespoke professional advice rather than a cheap online form. Many of our clients ask us to encompass the following matters in their agreements:
- Ownership of assets/property acquired pre/post marriage in one person’s sole name
- Ownership of assets/property in joint names
- Ring fencing any pre-marital contributions/trust related assets/business interests
- How inheritances/gifts are to be treated
- Whether any maintenance will be paid by one party upon marital breakdown and, if so, for what duration and how will that be negotiated?
- How will the interests of minor dependent children be met?
- Will pensions be shared/nomination of death in service benefits?
- Entitlement to cash savings/policies/other assets
- Cars/valuable items/contents
- How will debts be treated?
- What will happen on the death of either party?
- When will the terms of the agreement be reviewed?
However, the content of your prenuptial or postnuptial agreement is entirely up to you.
Speak to a specialist in our family team for a no obligation chat to see how you can ensure your current and future assets are protected by creating an agreement that is fair and reasonable.
You could get an idea of whether a prenuptial agreement could be worthwhile by using our prenuptial calculator.
For more information, and to see how such an agreement may be beneficial to your situation, please contact the family team on 0113 320 5000 or by email on family@winstonsolicitors.co.uk.
Find out what other services we offer at Winston Solicitors, Leeds.
Case Studies
Protecting Family Business Assets with a Prenuptial Agreement
The Situation
John, a successful business owner, was about to marry Emily, a teacher. John wanted to ensure that his family business, which had been in his family for generations, would remain protected in the event of a divorce.
The Challenge
The challenge was to create a Prenuptial Agreement that would protect John's business assets while also being fair to Emily and providing for her needs.
The Solution
Winston Solicitors worked closely with both parties to draft a comprehensive Prenuptial Agreement. The agreement specified that John's business assets would remain his sole property, while also ensuring that Emily would be financially secure through other assets and joint savings. The agreement also included clauses for periodic reviews to account for changes in financial circumstances such as the birth of children.
The Outcome
Both John and Emily felt the agreement was fair and equitable, providing them peace of mind as they entered into their marriage and giving certainty for the other business owners.
Navigating Second Marriages and Complex Assets
The Situation
Sarah and Mark, both in their 50s, were planning to marry. Each had children from previous marriages and significant assets, including property and retirement accounts.
The Challenge
The couple wanted to ensure that their assets would go to their respective children while also providing for each other.
The Solution
Our team at Winston Solicitors crafted a detailed Prenuptial Agreement that outlined the division of assets, including provisions for their children and future grandchildren
The Outcome
Sarah and Mark entered their marriage with a clear financial plan, ensuring a harmonious blending of their families and assets to avoid later disputes between any elements of their blended family.
Pre-Nuptial Agreements primarily focus on financial aspects so they generally do not dictate terms for child arrangements (sometimes referred to as custody) but they can cover the issue of child maintenance or support and other child related financial issues such as payment of one-off expenses or longer-term outgoings such as school fees. The child arrangements are usually agreed or determined by the court based on the best interests of the child.
If a Pre-Nuptial Agreement is not updated, the original terms will usually stand. However, it may not account for changes in financial circumstances, assets, or family structure, which could lead to complications in the event of a divorce some years later as there could be an argument as to how relevant the Pre-Nuptial Agreement is. This will be less relevant if the divorce is within a relatively short time frame of the Agreement or the Pre-Nuptial Agreement is entered into by parties entering into a marriage later in life
It is recommended that a Pre-Nuptial Agreement be finalised at least four weeks (ideally longer) before the date of the marriage or civil partnership. This helps ensure that both parties have adequate time to review the agreement and seek legal advice.
Yes, a Pre-Nuptial Agreement can be updated or modified after marriage through a Post-Nuptial Agreement. It is often advisable to include provisions for future reviews in the original Pre-Nuptial Agreement.
A Pre-Nuptial Agreement can include provision for various types of assets, such as property/real estate, savings, investments, and even future inheritances. The agreement can be tailored to meet the specific financial circumstances of both parties.
There is no time bar if you wish to remarry in England or Wales but you will need to check the country in which you intend to marry but you must have your Final Order (previously known as Decree Absolute).
You should also check with your solicitor about any effect your remarriage might have on your financial entitlement after your divorce if you have not yet finalised your finances following your divorce/dissolution.
Research tells us that arrangements agreed between the parties are much more likely to succeed if they are made by agreement between the parents. However, where one parent does not agree to those arrangements we can suggest alternative ways of reaching a resolution for your children for example, you may need to try mediation, arbitration or ultimately court proceedings to help you sort these arrangements.
These are the court proceedings that you can apply to the court for following a divorce/dissolution which will ultimately provide orders for a financial settlement.
Mediation is an impartial independent service who can assist you and your ex-partner to make arrangements for your family upon separation.
This is a specific type of court application that is available to request an order to provide financial assistance for children from an unmarried parent.