Nuptial Agreements: What Do the Courts Consider?

Year Published: 2020

Nuptial agreements refer to either pre-nuptial agreements (entered into before marriage) or post-nuptial agreements (entered into after marriage).

At present, nuptial agreements are not legally binding. This means that if an agreement is entered into and the relationship breaks down, the court has discretion and can move away from the terms of the agreement if they feel that it is fair and reasonable to do so.

Why a Nuptial Agreement May be Upheld

When entering into a nuptial agreement, there are various circumstances that can increase the chances of the agreement being upheld by the court if the relationship does break down. These include:

  • if there haven’t been any significant changes in circumstances since the agreement was signed;
  • if the parties are mature with a wealth of life experience;
  • if the agreement is fair with the financial needs of both parties, and the needs of any children of the marriage being met by its terms; and
  • if the parties received independent legal advice when the agreement was signed.

Why a Nuptial Agreement May Be Overturned

Likewise, the following circumstances can decrease the amount of weight the court places on a nuptial agreement. These may include factors such as:

  • where there have been significant changes in the relationship since the agreement was signed, such as the birth of a child, and the agreement has not been amended to reflect this;
  • if there has been a significant financial change, for example one party has inherited a large sum of money since the agreement was signed and it hasn’t been amended to reflect this;
  • if the parties were young and inexperienced at the time of signing the agreement;
  • if the agreement is unfair for one party, does not meet the needs of both parties and/or doesn’t meet the needs of any children born to the parties; and
  • if one or both parties did not fully appreciate the implications of the agreement at the time of signing. For example, if no legal advice was sought.

Nuptial agreements should not be entered into without the benefit of legal advice. If you would like any further advice regarding this topic please contact Cheryl Haywood on 01260 282314 or email [email protected].

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