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Prenuptial and postnuptial agreements

Prenuptial agreements are something you often hear about it in divorce cases, especially high profile ones, but did you know that postnuptial agreements also exist.  Here we look at both. 

What is a prenuptial agreement?

A prenuptial agreement is a formal agreement created prior to marriage which discusses how assets will be divided should you divorce or separate. They are often created where one partner has substantial wealth and wishes to protect it against all eventualities, including divorce. But are they legal in the UK? 
 
The short answer is no, they are not. However, they will act as a guide for the courts should you decide to get a divorce, and therefore it can be a useful agreement to have in place. 

Before getting married it’s not nice to think about the possibility of getting a divorce, but it is better to be prepared than to regret it later on. It doesn’t mean that you don’t have faith in your relationship, but it may just take the pressure off if one of you has more money and wants to retain their security. 

Why should I get one?

A prenuptial agreement shows that, as a couple, you have thought about all eventualities, and have prepared should the worst happen. As a result, courts will often take them into account and use them as the basis of their judgement.

Should you break up, it is likely to be a painful time for the both of you. Having a prenuptial agreement in place will make negotiations easier, as you will both be aware of what to expect financially.  It can also be used as the basis in these negotiations, should you decide to deviate from the original agreement slightly. Guide to Writing a Prenuptial Agreement.

How do I get one?

Although there are options online to make your own prenuptial agreements, it is important to realise that every situation is different, and as a result you are unlikely to find an online agreement that entirely suits your situation. 

In order to give a prenuptial agreement the best chance of being upheld by a court, it will need to be tailored to your partner and your individual circumstances. A court is also likely to check whether you both sought independent legal advice before making the agreement, so seeking help from a specialist family law solicitor is a really good idea.

However, it is advisable that you both speak to different solicitors, to avoid any suggestion that either party acted involuntarily. 

What should a prenuptial agreement include?

In addition to needing legal advice, there are also certain criteria that you will need to fulfil to make sure your agreement is upheld in court:
  • Both parties must enter the prenuptial agreement ‘freely and knowingly’, i.e. they must both be 100% on-board and have agreed to it voluntarily. 
  • Any properties and assets must be fully disclosed.
  • The agreement must be signed at least 21 days prior to the marriage. If not, it may be suggested in court that it was rushed into, or made as a result of pressure by one party. 

Postnuptial agreements

You may have heard of prenuptial agreements, but there is also the option to sign a postnuptial agreement. These are similar to prenups but are used for a number of reasons:
  • To strengthen an existing prenuptial agreement.
  • To amend an existing prenuptial agreement if circumstances change.
  • Where relationships are having difficulties and either couple wants financial peace of mind.
  • If relocating to the UK and you wish to protect your assets in case of a future English divorce.
You do not have to have a prenuptial agreement in place to make a postnuptial agreement. While a postnuptial agreement can be used to strengthen an existing agreement, you do not have to have both. 

Do I need legal advice?

The court will use the agreement as a basis, such as in the case of Radmacher v. Grantino, which found that the prenuptial agreement should not be ignored. However, as it is not legally binding, there may be some variance from the original document if it is not fair to both parties, or if circumstances have changed.

As a result, it is advised that you seek legal advice in order to make sure that the agreement is compliant with UK law. Our expert solicitors are here to help, get in touch today for an informal chat about your particular situation.


Note: First4Lawyers offer this information as guidance, not advice. Before taking any action, you should seek professional assistance tailored to your personal circumstances and not rely on First4Lawyers’ online information alone. All details correct at time of last update.

Last updated: November 2017