Pre-nuptial and post-nuptial agreements
We provide advice and guidance in relation to pre-nuptial and post-nuptial agreements.
WHAT IS THE DIFFERENCE BETWEEN A PRE-NUPTIAL AND A POST-NUPTIAL AGREEMENT?
Quite simply, a pre-nuptial agreement is an agreement entered into before marriage and a post-nuptial agreement is an agreement entered into after marriage. The purpose of both is to record an agreement as to what should happen to the parties’ finances if they separate.
There is no difference in the legal status between pre-nuptial and post-nuptial agreements.
THE ENFORCEABILITY OF NUPTIAL AGREEMENTS
In many countries across Europe and the United States, a nuptial agreement is binding. In England and Wales the legal position is slightly different in that these types of agreements are not automatically binding however the Court must take them into consideration when parties divorce.
A recent court case from 2010 called Radmacher v Garantino was a landmark case and established that the court will uphold a nuptial agreement that is freely entered into by the parties, with a full appreciation of its implications, unless in the prevailing circumstances it would not be fair to do so.
THE INTERNATIONAL COUPLE
Often when couples divorce there are international elements to their separation. It might be, for example that both parties’ are from different countries, or the nuptial agreement that was signed was entered into abroad. This does not prevent the courts of England and Wales dealing with a nuptial agreement on divorce. If the court has jurisdiction to deal with the parties’ finances, then they will take into account the nuptial agreement regardless of the parties’ nationalities or where the agreement was entered into.
CHECKLIST ON HOW TO CREATE A QUALIFYING NUPTIAL AGREEMENT
In order for your nuptial agreement to be as watertight as possible, it is advisable to comply with the following criteria so far as possible:
- Ensure the agreement is contractually valid.
- Ensure the agreement is validly executed as a deed and contains a ‘relevant statement’ to support this.
- Do not make it within the 28 days immediately before your wedding or civil partnership ceremony.
- Exchange disclosure of your finances so you know exactly what each other’s financial positions are before entering into the agreement.
- Obtain legal advice.