Nuptial agreements have seen a rise in popularity in the UK, with high profile divorces highlighting the risks of not having a prenup or postnup in place. In addition, people now tend to get married later in life when they have accumulated more wealth and therefore have more assets to protect.

Claire Porter, partner in our family team, discusses nuptial agreements for both pre and post marriage.

What is a prenuptial agreement?

A prenuptial agreement is a contract that couples enter into before marriage. It ensures that there is a clear plan in place with regard to what will happen to assets that either person brought into the marriage or future inheritance in the event of divorce. For example, whether such assets should be treated differently than assets that the parties build up together during their marriage.

What is a postnuptial agreement?

A postnuptial agreement is a contract which is entered into after marriage. Like a prenup, a postnup sets out how assets would be shared in the event of the marriage ending.

Why do I need a nuptial agreement

Once married, all assets are thrown into a ‘matrimonial pot’ and are up for division between the parties. Nuptial agreements are often drafted before second marriages, particularly where there are children from the first marriage.

By entering into a nuptial agreement certain assets can be excluded from the matrimonial pot, to ensure that children’s inheritances are left intact in the event of divorce or death.

Younger couples entering into marriage for the first time are also taking out a nuptial agreement which can be used to protect wealth from the ‘bank of Mum and Dad’ which can arise in circumstances whereby parents have helped their children buy a property, or the couple are likely to receive large gifts of money, shares in a company/family business, or future inheritances/windfalls during their marriage.

If you want to protect assets to ensure your financial stability in case things don’t work out, wish to try to avoid a stressful, lengthy and costly legal battle about who gets what, or ensure the financial stability of any children you may have from a first marriage then a nuptial agreement could be right for you.

Are nuptial agreements legally binding

In England and Wales, nuptial agreements are not legally binding if one spouse wants to try to argue that they should not be bound by its terms. Ultimately, it is the family court that will have the last word when deciding how assets and income ought to be divided on divorce. The good news is that in the case of Radmacher v Granatino the Supreme Court indicated to Judges sitting in the family courts that they should take notice of a nuptial agreement as long as it has been freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

Can I do a prenup without a laywer

If the following safeguards have been met when creating a nuptial agreement, then it is more likely to be upheld by judges sitting in the family court and the parties should expect to be held to the terms of any nuptial agreement entered into.  The safeguards are:

  • both parties have had separate and independent legal advice.
  • both parties have disclosed their financial positions.
  • both parties have negotiated the terms of the agreement well before the date of marriage (a minimum of 28 days but ideally much longer). This is to avoid undue pressure – “sign this or the wedding is off…”.
  • both parties have agreed to review the terms in the future, as circumstances change such as the birth of a child.

Based on my own experiences in family law, nuptial agreements are complex and intricate documents, requiring considerable thought and attention to detail.  For example, if gifts are received from parents on marriage or from family members trying to avoid inheritance tax, or there are assets located in other jurisdictions, these issues need to be considered carefully.

Whether you love or hate the idea of nuptial agreements, they are on the rise.  It is important that couples think about what they want to happen in the event they don’t get their happy ever after. After all, is it not better to talk about the “worst case scenario” at a time when you are most in love, not later when there may be bitterness and arguments?

If you wish to discuss nuptial agreement or advice on family law, please get in touch with Claire Porter or a member of our family team.

What is a prenuptial agreement?

A prenuptial agreement is a contract that couples enter into before marriage. It ensures that there is a clear plan in place with regard to what will happen to assets that either person brought into the marriage or future inheritance in the event of divorce. For example, whether such assets should be treated differently than assets that the parties build up together during their marriage.

What is a postnuptial agreement?

A postnuptial agreement is a contract which is entered into after marriage. Like a prenup, a postnup sets out how assets would be shared in the event of the marriage ending.

Why do I need a nuptial agreement

Once married, all assets are thrown into a ‘matrimonial pot’ and are up for division between the parties. Nuptial agreements are often drafted before second marriages, particularly where there are children from the first marriage.

By entering into a nuptial agreement certain assets can be excluded from the matrimonial pot, to ensure that children’s inheritances are left intact in the event of divorce or death.

Younger couples entering into marriage for the first time are also taking out a nuptial agreement which can be used to protect wealth from the ‘bank of Mum and Dad’ which can arise in circumstances whereby parents have helped their children buy a property, or the couple are likely to receive large gifts of money, shares in a company/family business, or future inheritances/windfalls during their marriage.

If you want to protect assets to ensure your financial stability in case things don’t work out, wish to try to avoid a stressful, lengthy and costly legal battle about who gets what, or ensure the financial stability of any children you may have from a first marriage then a nuptial agreement could be right for you.

Are nuptial agreements legally binding

In England and Wales, nuptial agreements are not legally binding if one spouse wants to try to argue that they should not be bound by its terms. Ultimately, it is the family court that will have the last word when deciding how assets and income ought to be divided on divorce. The good news is that in the case of Radmacher v Granatino the Supreme Court indicated to Judges sitting in the family courts that they should take notice of a nuptial agreement as long as it has been freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

Can I do a prenup without a laywer

If the following safeguards have been met when creating a nuptial agreement, then it is more likely to be upheld by judges sitting in the family court and the parties should expect to be held to the terms of any nuptial agreement entered into.  The safeguards are:

  • both parties have had separate and independent legal advice.
  • both parties have disclosed their financial positions.
  • both parties have negotiated the terms of the agreement well before the date of marriage (a minimum of 28 days but ideally much longer). This is to avoid undue pressure – “sign this or the wedding is off…”.
  • both parties have agreed to review the terms in the future, as circumstances change such as the birth of a child.

Based on my own experiences in family law, nuptial agreements are complex and intricate documents, requiring considerable thought and attention to detail.  For example, if gifts are received from parents on marriage or from family members trying to avoid inheritance tax, or there are assets located in other jurisdictions, these issues need to be considered carefully.

Whether you love or hate the idea of nuptial agreements, they are on the rise.  It is important that couples think about what they want to happen in the event they don’t get their happy ever after. After all, is it not better to talk about the “worst case scenario” at a time when you are most in love, not later when there may be bitterness and arguments?

If you wish to discuss nuptial agreement or advice on family law, please get in touch with Claire Porter or a member of our family team.

Call Us Send a Message

Questions about undue influence

  • What is undue influence?

    Undue influence happens when someone is able to persuade another person’s decision making due to a relationship of trust and confidence. This is especially important in cases where a vulnerable individual, such as an elderly person, might be susceptible to manipulation and is common in disputes relating to wills.