Pre-Nuptial & Post-Nuptial Agreements
A couple wanting to protect their assets will have a written document prepared, setting out what they have agreed. The document may be entered into before they marry, in which case it is called a ‘pre-nuptial agreement’, or it may be entered into after they marry, in which case it is called a ‘post-nuptial agreement’. The rules relating to the legal status of each type of agreement are similar.
Is the agreement binding?
The most important thing to consider about such agreements is whether they are binding – in other words, whether they will be upheld by the courts of England and Wales.
There is a general rule in relation to the law: that a court cannot be prevented from making the order it wants to make. In relation to financial remedies on divorce, this means that the divorce court can make whatever order it considers appropriate/fair, regardless of what the parties may have agreed.
This rule means that pre-and post-nuptial agreements are not binding upon the courts here, unlike in many other countries, and until relatively recently our courts did not consider themselves to be obliged to follow the terms of any such agreement.
However, that all changed in 2010 when the Supreme Court held that the court should give effect to a nuptial agreement that is freely entered into by each party. This means that whilst the court is still not bound to follow the terms of a nuptial agreement in all cases, it is likely to do so in most cases. A correctly drafted agreement is imperative to ensure there is minimal chance of the contents being successfully challenged.
Obtaining a pre or post-nuptial agreement
What is involved in obtaining a pre-or post-nuptial agreement?
There are no hard and fast rules, but it is generally considered that for the agreement to be valid two steps must be taken by the parties before the agreement is entered into.
Firstly, both parties must have made full disclosure of their financial circumstances and any other material matters.
Secondly, both parties must have taken independent legal advice upon the proposed terms of the agreement.
Further to this, in the case of pre-nuptial agreements, the agreement must have been entered into a reasonable time before the marriage, to avoid the possibility of one party being pressured to sign the agreement. Twenty-eight days has been suggested as a minimum time prior to the marriage.
Subject to these points, the agreement will be drafted by the Solicitor for one of the parties (preparing a nuptial agreement is a job for an expert family Solicitor). The draft will be sent to the other party’s Solicitor and once the wording of the agreement has been agreed by both parties a final copy will be prepared, which will be signed and witnessed by the parties.
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