Prenuptial & Postnuptial Agreements

Prenuptial and post-nuptial agreements
Legally reviewed by: Shakeela Bi

At Cartwright King we have a team of family solicitors who can provide you with legal advice and assistance in creating a prenuptial agreement in the UK. Our family team are on hand to assist wherever you are based. We offer a fixed fee service in some cases. However, in more complex cases we will provide a tailored quote.

What is a Prenuptial Agreement?

A prenuptial agreement or a ‘pre-nup’ is an agreement that is entered into before a couple are married. The agreement details how assets will be divided in the event of a marriage breakdown.

Why Make a Prenuptial Agreement?

When couples marry, naturally they believe they will be married for the rest of their lives. Today however, this is sadly not the case and marriage breakdowns and divorce are common place.

There are several reasons that a prenuptial agreement could be beneficial, including when:

  • One of you has specific personal assets that they wish to protect, such as inherited wealth or a business
  • You have children from a previous relationship or marriage
  • One of you thinks they might come into wealth after marriage
  • You have come to the UK from a country where pre-nuptial agreements are commonplace
  • More likely to have control over what will happen to your finances and assets in the event of a breakdown.

Whilst there remains no statutory provision to validate pre-nuptial agreements in England and Wales there has been growing recognition of these agreements supported by numerous high profile cases (Rachmacher v Granatino). As a result the courts are likely to follow the terms of an agreement providing certain criteria is met.

Why Do I Need a Prenuptial Agreement?

For separating couples who have not entered into a pre-nuptial agreement the court will divide marital assets from a starting position of 50/50. This could disadvantage a party who has brought greater wealth than the other into the marriage.

Couples often enter into a prenuptial agreement to provide:

  • Less stress
  • Transparency
  • Compensation
  • Potential to save money
  • Protecting assets
  • Debt protection
  • Protection of business partners

If parties require certainty and protection from depletion of their own assets then a pre-nuptial agreement can offer this.

What Can I Include in a Pre-Nuptial Agreement?

  • Personal and business assets
  • Property and investments
  • Safeguarding assets for children from previous relationships
  • Inherited assets
  • Overseas interests
  • Protection from previous debts

Do We Need Different Solicitors to Draw Up a Prenuptial Agreement?

Yes, in order for these agreements to be recognised by the court the instruction of independent solicitors by both parties is one of the criteria that must be met.

What Are the General Requirements to Validate An Agreement?

  • Full and frank disclosure of all assets by both parties
  • Each party must understand the implications of the document
  • The agreement must be entered into freely
  • Does not unreasonably prejudice the position of any children of the family
  • An element of fairness subject to the circumstances

Are Prenuptial Agreements Legally Binding in Court?

The Supreme Court has decided that equal weight should be given to the terms of a pre-nuptial agreement, as long as:

  • Each party freely entered into the agreement
  • Both parties fully understood the terms of the agreement at the time
  • It would be fair in the circumstances of the case to uphold it

As stated above these agreements do not have statutory validity. However, in most situations the court will look to abide by an agreement, provided it has been properly drafted by a solicitor and the above criteria is met. The courts do retain the right to ignore some or all of an agreement if they feel it is unfair.

Generally, agreements entered into properly can be highly persuasive to the financial outcome of a case.

We offer fixed fee options, and have experience of dealing with more complex matters where we provide tailored quotes.

What Can I Do if I Have Already Married but Want to Make an Agreement?

A post-nuptial agreement or a ‘post-nup’ is an agreement which is entered into after a couple are married. As a result, this allows a couple to create a financial plan should their marriage end. This is dealt with in exactly the same way as a pre-nuptial agreement and the same criteria applies.

How Should I Proceed If I Want To Make a Pre or Post Nuptial Agreement in the UK?

To start with contact our team who will be able to guide you through the process and arrange a quote for you. It’s always best to get expert legal advice from a solicitor at an early stage as prenuptial agreements must follow certain principles. Therefore, where these are not followed, the court may not uphold the legal document.

Making a Prenuptial Agreement Legally Binding

For a prenuptial agreement to be legally binding, it needs to be drafted in the proper format and in a certain way. Your document should meet the following requirements:

  • It has to meet both your financial needs and those of any children you have
  • It must be validly executed as a deed
  • It must have been made more than 28 days before your wedding or civil partnership ceremony
  • Both of you must receive financial disclosure about your partner’s financial situation before you sign
  • Finally, both of you must receive legal advice at the time you sign

We can help you throughout the process of drafting and finalising a prenuptial agreement.

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Frequently asked questions.

What is a prenuptial agreement?

A prenuptial agreement is a legal document that you set up with your partner before (or sometimes after) you get married to outline in detail what will happen to your assets and your children if you were to get divorced.

Setting up a prenuptial agreement is recommendable for any couple as you never know what might happen down the line. Prenuptial agreements can save you, your partner and your children a lot of unnecessary stress and upset.

Our family law solicitors can assess your situation and offer you tailored advice. We are here to help you set up your pre or post-nuptial agreement when you are ready to do so.

Are prenuptial agreements binding in the UK?

Prenuptial agreements are legally binding in the UK.

Many may feel prenuptial agreements aren’t worth writing up as in the past, courts in England and Wales were hostile towards prenuptial agreements, generally dismissing these completely at the time of divorce.

However, this changed in 2010 when the Supreme Court ruled in the case of Radmacher v Granatino that the prenuptial agreement should be taken into account.

Prenuptial agreements are now legally binding in the UK as long as:

  • Each party freely entered into the agreement
  • Both parties fully understood the terms of the agreement at the time
  • It would be fair in the circumstances of the case to uphold it

What should a prenuptial agreement include?

In your prenuptial agreement, you would include a list of your and your partner’s assets and how these will be divided if you were to divorce later down the line.

This allows partners to ring-fence specific assets that are important to them, for example, family heirlooms, business assets or property.

Our family law solicitors can help you assess the benefits of a prenuptial agreement in your specific situation.

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