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Pre Nuptial and Post Nuptial Agreements – A Discussion

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Here, Donna Goodsell, Principal of Goodsells Family Law, discusses pre nuptial and post nuptial agreements, and their role when considering divorce in England.

What is a pre nuptial or post nuptial agreement?

A pre nuptial agreement is designed to make advance provision for the division of one’s assets in the unfortunate event of divorce. A pre nuptial agreement is prepared prior to a marriage.

By contrast, a post nuptial agreement is usually prepared after the marriage, sometimes after a period of years, possibly in an effort to protect a specific asset.

The courts in England and Wales perceive a pre nuptial agreement and a post nuptial agreement equally, and in the context of your specific circumstances.

Is a pre nuptial or post nuptial agreement a good idea?

  • Yes, if you have particular assets, trust interests, a potential gift of inheritance or, perhaps a share in your family business.
  • Yes, if you are independently wealthy and wish to maintain financial independence in the event of divorce.
  • Yes, if you move internationally and the law of the country in which you may divorce differs from your initial expectation.
  • Yes, if perhaps, you wish to protect your children from your previous marriage.

Specifically, there are various reasons for choosing a post nuptial agreement:

  • Following a trial separation and reconciliation;
  • A wish to protect an inheritance, or specific gift;
  • Insufficient time to arrange a pre nuptial agreement.

In the jurisdiction of England and Wales, financial provision on divorce is uncertain, because it is dependent upon the couple’s unique circumstances. The courts apply established statutory criteria, which are subject to the wide discretion of a judge.

In cases where the assets of the family are ‘significant’, unless there are compelling reasons to the contrary, the equal division of those assets will be the starting point for the court. Reasons to ‘deviate’ from equality could include the relative brevity of the marriage or, perhaps, that one party’s needs outweigh that of the other.

Although marriage can offer financial protection to the financially weaker spouse, the lack of clarity can render the court process uncertain and stressful for divorcing couples.

For many couples, the effort to avoid the expense, acrimony and uncertainty during marriage breakdown, is the main reason for considering a pre nuptial, or post nuptial agreement.

What is the value of a pre nuptial or post nuptial agreement?

Whilst neither a pre nuptial or post nuptial agreement is automatically legally binding in the jurisdiction of England and Wales, the courts are entitled to exercise their discretion and uphold such agreements.

A pre nuptial or post nuptial agreement is more likely to be upheld by the court, if the court is satisfied that the agreement is both entered into without any undue influence and will not lead to a spouse suffering undue hardship.

To make a pre nuptial or post nuptial agreement more attractive to the court, it is necessary to ensure the following:

  • Each spouse should provide full financial disclosure;
  • Each spouse should obtain independent legal advice from a family lawyer;
  • The agreement should ensure that suitable provision is made for each spouse and any dependent children to meet their ‘reasonable’ needs; and
  • In order to avoid undue pressure, the agreement should be signed in good time prior to the marriage ceremony.

If you are contemplating a pre nuptial agreement ideally, your discussions with an expert Family Lawyer who specialises in such agreements, would begin 2 to 6 months prior to the marriage. That said, I have on occasion, taken late instructions and produced a satisfactory agreement close to the date of the wedding.

The weight the court gives to a nuptial agreement may depend on the length of the marriage, the financial resources of the spouses and the provision for any dependent children. It is essential for the agreement to anticipate reasonable future events.

Get expert pre nuptial and post nuptial agreement advice

Donna Goodsell is an experienced solicitor who specialises in all aspects of Family Law. Please do not hesitate to contact us if you require expert advice to help with decisions affecting you and your family.

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