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What are Pre- and Post-nuptial Agreements and why might you want one?

On Valentine’s Day you see a lovely array of proposals on social media capturing the moment or that all important beautiful ring. After taking a moment to enjoy the romantic aspect of commitment that two people are making to one another, as a family lawyer you start to think about the practical element of both parties protecting themselves should the marriage end.

Yes, I can hear you saying that “this will never happen to us” as we are never going to get divorced. Sadly, every person that has decided to proceed with a divorce never anticipated that they would be going through it. I always recommend that people obtain legal advice about a pre- or post-nuptial agreement to set out their intentions (in respect of the finances) should they divorce.

Are Pre-nuptial/Post-nuptial agreements legally binding in England & Wales?

In England & Wales, pre-nuptial/post-nuptial agreements are not formally binding unlike in other jurisdictions. We have started to see a shift in the Court’s approach to upholding a pre-nuptial/post-nuptial agreement provided that both parties have freely entered into the financial agreement.

The most common reasons for entering into a nuptial agreement?

  • To protect the family wealth – if one party comes from a wealthy family and/or has business.
  • To keep your own assets – this is often a reason when a party has been married previously and wants to protect their wealth for any children from first marriage.
  • Certainty – that both parties will be protected financially.


Key points to note:

Pre/post-nuptial agreements are open to interpretation of the Court when considering them. For example, when parties entered into a nuptial agreement, they might not have factored in children but have since gone on to have children, the Court will consider this. It is important to review any nuptial agreement regularly so that they are updated where necessary.

The Court will also consider any suggestions that one party felt pressured into entering the nuptial agreement and that it is an unfair nuptial agreement. If the Court is satisfied that there have been any factors of fraud, duress or undue influence then the Court is likely to treat the nuptial agreement as void from the beginning.

 

This blog is not to be taken as legal advice and you should contact us with full details of your own circumstances so we can advise you.

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About the Author
Kiran Reyat, Senior Associate, Head of Family Law

Specialises in: Family Law

Our specialist team can assist you in protecting your property, other assets and inherited wealth both pre- and post-nuptials. Please contact Kiran Reyat in the Family Law department at Comptons Solicitors LLP. (kiran@comptons.co.uk / 020 4538 5639).