Pre & Post Nuptial Agreements for those entering Civil Partnership or Marriage:

People planning to get married or enter a civil partnership often decide to enter into an agreement that shows what they intend to happen to their money and property if the marriage or civil partnership were to end. This is called a pre-nup.

The main question that I find most people want to know about pre-nups is whether a pre-nup is binding on the court.

Pre-nups are not legally binding on the court in the event of a later divorce, however it is very likely that pre-nups will be given significant weight by the court unless the effect of the pre-nup agreement would be unfair on the parties.

English law does not formally recognise pre-nuptial agreements in the same way that some other countries do. In some countries for example, a pre-nuptial agreement will always be binding when a couple divorce, but this is not the case in England.

English courts have to consider a large number of factors when deciding how to distribute matrimonial assets on divorce. Pre-nuptial agreements are not listed in those factors, yet. But, in recent years, English courts have given pre-nuptial agreements greater weight in a number of cases and treated them as a significant consideration.

A recent decision of the Supreme Court Radmacher v Granatino has reinforced this view and the Supreme Court substantially upheld the pre-nuptial agreement that the couple had entered into. However, for pre-nups to be binding in all cases, Parliament would have to bring in new legislation.

But the general view amongst family lawyers is that a pre-nup is evidence of the parties’ intentions at the time they signed it and in contemplation of marriage. For the best chance of having a pre-nup upheld, just like cohabitation agreements, the following points need to be taken into account:

• Neither party should feel under any pressure to enter in to the agreement

• Again both parties will need to obtain independent legal advice

• Both parties must disclose their financial assets and liabilities

• The pre-nup should be entered into some time before the marriage takes place, as a general guideline at least 6 to 8 weeks before the marriage

• The agreement must be fair. If it is not fair, it is unlikely to be upheld. The parties also need to recognise that the agreement is likely to have to be changed as time goes by. What is fair after a short marriage with no children will not necessarily be fair after many years of marriage with children. For this reason it is advisable for the pre-nup to be reviewed either in 2 to 5 years or upon the birth of a child.

So – what sort of things can a pre-nup cover?

A pre-nup is a bespoke document drawn up for your particular circumstances, so it can cover almost anything you want it to. There are certain things that couples usually think about when deciding how they want to work things out if their marriage comes to an end – for example:

– what should happen to property they solely own and are bringing into the marriage;

– what would happen to any property or money inherited by one party during the marriage;

– what kinds of events might require the agreement to be reviewed?

A post-nuptial agreement is one that is made after getting married.

The status and effect of post-nups were considered in the case of MacLeod v MacLeod. The Supreme Court decided that parties who have made a post-nup should be entitled to enforce that agreement on separation, subject to the courts usual power of variation.

The recent decision of the Supreme Court in the case of Radmacher v Granatino dealt with pre-nuptial agreements but the result makes it arguably more likely that a post-nup will not be varied.

We cannot guarantee that a post-nup will be upheld but in order to give such an agreement the best possible chance of being upheld the same points need to be taken into account here as with pre-nups.