Guide to pre and post nuptial agreements

What is a prenuptial agreement?

This is a formal written agreement between those expecting to get married dealing with the ownership and disposal of property during their marriage and usually making provision in the event of divorce or separation for how their property will be divided and how each will provide financial support for the other and/or their children.

What is a postnuptial agreement?

This is the same as the above but is entered into after and not before marriage. A Separation Agreement entered into when the marriage breaks down may be called a Post-Nuptial Agreement as well.

Are pre and post nuptial agreements enforceable?

Pre and post nuptial agreements are still not enforceable in the English courts however they will be considered and taken in to account by a judge who has to decide the financial aspects of the breakdown of a marriage within the matrimonial proceedings.

Years ago very little notice was given to the prenuptial agreements and considered to be the price which one party may use to show their willingness to marry. Even now the courts approach to a postnuptial agreement is different to that of prenuptial agreement.

How do the courts approach  post nuptial agreements?

If a post-nuptial agreement exists the starting point would be the terms of that agreement. Then the court would look for a change in circumstances in the light of which the financial arrangements were made. 

The post-nuptial agreement might be varied if a change occurred which would make the arrangements specified in the post-nuptial agreement manifestly unjust or if it failed to make proper provision for any child. The court may vary the agreement if it places financial obligations on the state which should be covered by the family. 

To avoid the possibility of an allegation of undue influence in the future and in support of an attempt to avoid a post-nuptial agreement, the agreement might record why the parties are entering into the agreement initially. The fact that the agreement is not what a court would have done cannot be enough to have it altered or void.

Therefore post-nuptial agreements are likely to be rigorously enforced which provides a powerful reason to reaffirm the terms of any pre-nuptial agreement made before marriage in the form of a post-nuptial agreement entered into after marriage. This can be in the form of an executed deed which clarifies that the parties intend to create legal relations.

Any agreement should make provision for as wide a range of possible future circumstances as possible and, in particular, raising a family, to limit the likelihood of the court interfering with the agreement in the future. Any provision seeking to contradict the court’s jurisdiction or to limit the power of the court to make proper provision for a child will be void but may be taken out of the agreement so the rest of it is enforceable.

It is strongly advised that both parties review the agreement following a significant change in circumstances such as a birth of a child or a large inheritance.

Overall, the court is likely to enforce a post-nuptial agreement particularly if each party is independently advised, the agreement is properly negotiated, and there is an accurate disclosure of relevant matters attached as a schedule to the agreement even if that disclosure is general in nature. All of this is likely to persuade the court that neither party was subject to undue influence and have each entered into the agreement on a transparent and fair basis. 

How do the courts approach pre-nuptial agreements?

Pre-nuptial agreements have been the subject of a Government debates and case law through the courts for many years . Over time the courts have given greater weight to the terms of a pre-nuptial agreement when considering a financial remedy case. It is likely to consider all of the circumstances surrounding the creation of the pre-nuptial agreement and how much it anticipated future changes such as children. The court is likely to consider it to be highly relevant whether or not both parties had independent legal advice and whether or not the terms were fair even in a situation of want or need, whether or not each party had a full understanding of the other’s financial position and negotiations had taken place on an informed basis. If all of these factors are present the court is likely to give significant weight to the terms of the pre-nuptial agreement.

How can we help?

Our experienced Family team can provide you with the all legal advice and support you need when creating a pre or post nuptial agreement. We are here to help and guide you from start to finish.