Entering into a prenuptial agreement can be an exciting and positive part of the build up to a marriage, offering a solid basis on which you and your partner can begin your lives as a married couple.
When two people love and care for one another, this commitment to amicably agree on pre-nuptial terms can be preferable when compared to the uncertain and emotive nature of a relationship breakdown.
Knowing that the financial elements of your relationship have already been considered can relieve a great deal of anxiety in later years, therefore making a prenuptial agreement an attractive legal option.
A prenuptial agreement (sometimes referred to as an antenuptial agreement, premarital agreement, or simply a “prenup”) is agreed upon and drawn up prior to marriage and serves to provide marrying couples or couples entering into a civil partnership with some certainty where finances or asset ownership are concerned. The agreement is designed to be an enforceable contract subject to the ultimate discretion of the Court.
A postnuptial agreement acts in much the same way as a prenuptial agreement, the main difference being that it is agreed upon and signed by two people already in a marriage or civil partnership after they have tied the knot.
Prenuptial (and postnuptial) agreements are not legally binding. This is because only the Court has the statutory power and final say in relation to financial settlement terms arising from a divorce. A prenuptial agreement is therefore a relevant document to be considered as part of the Court’s exercise of power and its discretion in deciding if a settlement is fair and reasonable, and meets needs, when there is a divorce.
If the prenuptial agreement is entered into pursuant to proper full and frank disclosure and with a full appreciation and understanding, by both parties, of the implications of the agreement then, unless the terms of the agreement are determined to be unfair, it is probable that the agreement will be given decisive weight by the Court in the context of a divorce (or dissolution) and financial settlement.
It is vital therefore that a prenuptial agreement is entered into in a comprehensive and fully informed manner so as to ensure that its weight is maximised in the event that it has to be relied on in the future – that is after all its purpose, as a document intended to be relied upon for the regulation of financial arrangements in the event of a breakdown of the marriage. If you have already entered into a prenuptial or postnuptial agreement, it is a good idea to review your prenuptial agreement at important milestones in your marriage such as the addition of children or receipt of inheritance.
The leading case authority in relation to prenuptial agreements is Radmacher v Granatino  UKSC 42). This case provides guidance, alongside other prevalent legal principles in divorce and financial remedy law, as to the compulsory components of a prenuptial agreement specific to the circumstances of the couple in question.
Aside from protecting certain financial assets, a prenuptial agreement is often the best way to avoid or significantly reduce any conflict should your marriage or civil partnership come to an end. Although it may be true that prenuptial agreements are common between couples who hold substantial financial or physical assets before getting married, this does not mean that they are not useful or advisable for couples in a number of circumstances including:
These are just a handful of the many reasons to consider a prenuptial or postnuptial agreement. If you wish to find out more about the legal process or are interested in proposing to make a prenuptial or postnuptial agreement, please contact one of our prenuptial agreement lawyers with any questions >
Although a prenuptial agreement will not be legally binding, its effectiveness for both you and your spouse rests on the processes and procedures taken in setting it up. If a Court should ultimately consider the validity of your prenuptial agreement, it is advisable to follow these steps:
Instruct a qualified prenuptial agreement lawyer: it is crucial that you and your spouse instruct separate lawyers to agree upon your prenup. The same lawyer cannot represent both parties.
Disclosure: it is essential that both you and your spouse fully and transparently disclose all assets and liabilities alongside the drafting of the agreement
Timing: to avoid any questions over the full understanding of the agreement or concerns over one party freely entering into the agreement, the prenup should ideally be signed and completed at least 21 days prior to the marriage or civil partnership. Due to the nature of the work involved in setting up and finalising a prenup, our prenuptial agreement lawyers advise allowing at least 3 months prior to the marriage or civil partnership where possible. If timing becomes an issue, a post-nuptial agreement should be considered instead so as to alleviate the pressure ahead of the marriage date. It is important that there is a suitable ‘cooling off’ period before a prenup is finalised and signed.
Conditions of agreement: it must be clear to the court that the agreement was entered into by both parties freely and without any external pressures. The best way to achieve this is to follow the guidance and principles stemming from Radmacher -v- Granatino and to work with your legal representative to ensure that the agreement is produced in the prescribed manner so as to provide value to, and as much reliability upon as possible, the prenup in case it becomes a key consideration and document for you in the future.
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