UK Prenuptial Agreements & Postnuptial Agreements

What is a Prenuptial Agreement?

Also known as a “Prenup” or “Pre-marriage Agreement”, it is a formal agreement entered into voluntarily by two partners prior to their marriage, setting out how they will deal with their money, assets and property, and maintenance, will be dealt with in the event of a separation, divorce or dissolution of their relationship.

Most importantly a Prenup will set out how a couples belongings should be divided in the event of the breakdown of their marriage.

Why have a Prenup?

For many couples a Prenup is a positive way of ensuring their business or their existing assets and family are not adversely affected if the marriage ends. For example they can offer peace of mind if:

• There are children from a previous relationship for whom you wish to reserve certain assets and/or to protect their inheritance (alongside a Will).
• Either partner owns a business, which they want to ring-fence from any claim by the other party.
• You want to protect an inheritance and/or future inheritance.
• You want to preserve pre-existing assets.
• You want to regulate the amount of future maintenance payments or future capital provision for the other party.
• You want to set out how your partner’s outstanding debts should be treated.
• You want to set out which country’s courts should have jurisdiction over any dispute.

What’s the difference with a Postnuptial Agreement?

Where a Prenup is entered into prior to marriage, a Postnuptial Agreement (“Postnup”) can be entered into later on.

If both parties agree and with full financial disclosure, a Postnup can be drawn up to define what will happen with a couples belongings should the marriage come to an end. Usually parties consider a Postnup when one partner will come into a large inheritance during the marriage, and wants to set out how that should be treated upon divorce. There is usually a trigger for a desire to depart from the usual 50/50 division of assets by the English courts. You can have similar provisions in both pre and Postnuptial Agreement.

In England & Wales Prenup and Postnup agreements historically have not necessarily been legally binding, with the courts dealing with them on a case-by-case basis. It has however always been the case that judges have the discretion to enforce them, provided the agreement was freely entered into by both parties with a full understanding of its implications and that it is fair. It is true to say that they have gained more traction in England following a landmark decision in a 2010 test case (Radmacher v Granatino), which found for a wealthy heiress and allowed her to enforce a Prenup against her husband.

Follow some simple rules

The Law Commission produced a report in 2014, which set down some basic rules for a Prenup or Postnup:

• It was entered into voluntarily
• There was no duress or pressure on either party
• Both parties received independent legal advice – from different solicitors
• There was full financial disclosure
• It was signed at least 28 days prior to the marriage
• The agreement is fair.

Insurance against marriage breakdown

No one likes to think about a potential marriage break down on the eve of their wedding.

We therefore like to think that a Prenup is an insurance policy for your marriage, one that can stay safely locked away unless the worst happens and then it may save you time, expense, legal wrangling and bitterness.

The team at Blanchards Law have extensive experience helping couples create meaningful Prenup and Postnup agreements.

Everyone’s requirements are different which is why Blanchards Law always put you at the centre of everything we do.