Pre-Nuptial & Post-Nuptial Agreements

A pre-nuptial agreement (“prenup”) is a formal-written agreement that both parties to a marriage enter into before the ceremony to record what they want to happen in case the marriage does not last. Whilst some consider a prenup to be unromantic, making these arrangements whilst a relationship is in a good place often helps couples make much more rational and fair decisions. It is often seen as a sensible way to help reduce the risk of acrimony and uncertainty in the event the marriage  does break down. 

A postnuptial agreement (“postnup”) is  a formal written agreement that outlines what should happen if the marriage ends in divorce. The only difference between pre and post nuptial agreements is that the latter is entered into after marriage. 

The greatest benefit of a prenup is that it gives both you and your partner clarity when it comes to financial matters and helps alleviate the amount of stress and conflict that can arise during a divorce. They can also alleviate fears about you losing assets that you or your family might have accumulated before the marriage in case your marriage ends. 

A prenup can also help you protect assets that you might receive later in the future, such as business shares, inheritances or gifts. 

We understand that prenuptial agreements can be a sensitive subject for most couples, and we’re here to help you all the way. Our expert prenup lawyers will discuss your circumstances and objectives and advise you on how to proceed to protect your interests. 

Whilst a pre-nuptial agreement is the overriding legal tool to protect wealth ahead of a marriage, it is possible to enter into a post-nuptial agreement after marriage to confirm the parties’ intentions in the event of a later divorce. In the event that a couple are not marrying, but wish to firm up the financial arrangements between them for security, it is also possible to enter into a cohabitation agreement to identify each party’s position in the event of separation. Whilst a pre-nup is not totally binding on the courts of England and Wales, having a pre-nup is the surest way to ring fence assets being brought into a marriage, or future inheritance, as long as the agreement meets certain criteria.

While prenuptial agreements are not yet legally binding in England and Wales, following the 2010 Supreme Court decision of Radmacher v Grantino [2010] UKSC 42, the court is now more likely to uphold it and apply significant weight to the agreement if certain requirements have been met.

What do you need to sign pre-nuptial and post-nuptial agreements?

In order for significant weight to be attached to any pre and post nuptial agreement, you need to meet the following requirements:

• Both parties must give full and frank disclosure;
• You should ideally enter into the agreement at least 28 days before the marriage ;
• Both parties should have a full understanding of the agreement they are entering into (ideally, each party should have independent legal advice before entering into the agreement);
• There should be no duress i.e. the agreement should be freely entered into by both parties; and
• The agreement must be considered fair – that it meets the needs of both parties and any children of the family. 

A civil partnership pre-nuptial agreement works in exactly the same way as a pre-nuptial agreement in marriage. A pre-civil partnership agreement sets out the provisions as to how joint and individual assets accrued prior to or after the civil partnership should be divided and shared, in the event of a dissolution of the partnership, including any inheritance, debt and income resources. Civil partnership offers couples the same tax allowances, property rights, pension rights and other legal rights as a marriage does.

A pre-nuptial agreement or a post-nuptial agreement are always signed as a Deed and therefore need to be witnessed in order to be fully and properly executed, to make the agreement (or ‘contract’) between the parties legally binding. In England and Wales it is not necessary to have the agreement notarized, but that may become important and essential if the English agreement is to be registered in a foreign jurisdiction where rules and regulations in relation to notarizing are different, and necessary in order for the document to be legally recognised. It is essential to take tailored advice as a result to protect your position.

The cost of a prenuptial agreement varies in terms of complexity, and it is not uncommon for the costs of the party instructing the drafting to be similar to the party being asked to sign on the basis that it is imperative that the drafting is reviewed and assessed thoroughly. The average cost of a pre-nuptial agreement with Edwards Family Law is likely to be between £4,000 and £6,000 plus VAT, but will likely be more in the event that there are international elements which need to be factored in. A customised and personal cost estimate will be provided in the event of instruction once the scope of work involved can be more appropriately assessed.

Reputable family lawyers will be well-placed to advise in relation the key components of fair, and therefore reliable, pre-nuptial agreements. It is imperative to take early and sensible advice in relation to your position, and we would advise that in some circumstances, the pre-nuptial agreement terms are agreed and the document finalised and signed, before the wedding date is secured.

Like a prenup, the greatest benefit of a postnup is that it gives you and your spouse clarity and certainty regarding what would happen to your money and assets in case the marriage fails at some point. You can also sign a postnup to outline how to deal with your liabilities in case of divorce. With a postnup in place, you also save a significant amount of money and time in court proceedings at the time of divorce. Our family law solicitors can guide you throughout the whole process and make sure it is as stress-free as possible.

Once married, in the event that the need for a postnuptial agreement arises, the first step would be to discuss the issue with your spouse. Perhaps you are due to receive a significant inheritance which you would like to ring fence for the avoidance of doubt, or a parent is transferring shares in a family business? Communication is crucial in discussions about post nuptial agreements.

The cost of a postnuptial agreement varies in terms of complexity, and it is not uncommon for the costs of the party instructing the drafting to be similar to the party being asked to sign on the basis that it is imperative that the drafting is reviewed and assessed thoroughly. The average cost of a post-nuptial agreement with Edwards Family Law is likely to be between £4,000 and £6,000 plus VAT, but will likely be more in the event that there are international elements which need to be factored in. A customised and personal cost estimate will be provided in the event of instruction once the scope of work involved can be more appropriately assessed.

A postnuptial agreement must be signed as a Deed and witnessed in order for it to become a legal binding contract between the parties. The terms do not necessarily bind the court outright, but if the criteria required are met, then it is highlight likely that a properly executed post-nuptial agreement will be given significant weight by the court.

A prenup can be very helpful in protecting you and your spouse in many circumstances, such as when you want to protect your pre-marital assets, inheritance or a business interest, or you want to know where you and your spouse stand in case of a divorce. And if the agreement is fair and reasonable, a court is likely to uphold it.  

In order to ensure you have an agreement likely to be upheld, it’s very important to get independent legal advice to ensure your agreement is properly structured, the correct disclosure process is followed and that the agreement takes into account what a court might consider to be fair. Our expert family law solicitors can help you draw pre-nuptial and post-nuptial agreements so that they hold up in court. 

Post-nuptial agreements can be entered into in a variety of circumstances. For instance, you can sign one very shortly after a marriage, perhaps to add further weight to a pre-nuptial agreement. You might want to consider one where there have been a change of circumstance, such a new child of the family being born or a new business venture. Or you might want to enter once if you have considered divorce but have reconciled and want to agree to the division of your finances now to provide financial security or to minimise the risk for future disagreements or proceedings. 

As with pre-nuptial agreements, post-nuptial agreements are not entirely binding on the courts of England and Wales, but they are a significant aspect to a financial case which the court will need to consider carefully, and give weight to in most cases. The agreement itself needs to meet quite exacting criteria in order to be as binding as possible, so it is imperative to take specialist advice on the individual’s case. Crucially, a post-nuptial agreement is signed after the marriage, and so in circumstances where there would have been no compulsion to sign it to sign away the rights that as a married person you would already have, there is a case to suggest that it is given even more weight by the court, subject to meeting the process criteria, such as taking independent legal advice, there being full disclosure and its terms meeting need etc.

At Edwards Family Law, we have extensive experience in drafting, negotiating and considering pre-nuptial and post-nuptial agreements and can give you clear, concise and authoritative advice as to what the court is likely to uphold or not.

Kelly, our managing partner, has helped many clients in the past in drafting pre-nuptial agreements, both in England and Wales and with an international element, to ensure they have the best hope of being upheld. She has advised a number of clients in relation to their existing agreement (some of which were entered into over 20 years ago) and whether they would be upheld by the English Court.  

Kelly has successfully obtained further financial provision for both husbands and wives whose agreements did not provide them sufficient financial provision, even when they had been told by other lawyers they had no prospects of success. She has also successfully ensured a fair pre-nuptial agreement was upheld, despite attempts to go behind it. ​

If you would like advice about a possible pre-nuptial or post-nuptial agreement, then please contact us.