Questions about nuptial agreements
What is a nuptial agreement?
A nuptial agreement is a contract entered into by a couple prior to marriage or civil partnership (a ‘prenuptial agreement’) or after it (a ‘postnuptial agreement’). These contacts help determine how the couple’s assets should be divided if they divorce or separate. They can also regulate financial affairs during a relationship.
Are nuptial agreements binding?
No, they are not yet automatically legally enforceable in England and Wales, and remain one of many factors that a judge will consider when determining a financial settlement upon divorce. It is not possible to override a judge’s ability to decide on the appropriate division of assets on divorce.
But if a prenuptial or postnuptial agreement is not enforceable, why have one?
There have been a number of recent high profile cases where the judge presiding has upheld the division of assets set out in a ‘prenup’ or ‘postnup’, provided they are entered into properly. In a significant case in 2010, Radmacher v Granatino, the Supreme Court stated:
“The court should give effect to a nuptial agreement that is 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”
A nuptial agreement will therefore have a significant and substantial impact on the judge’s decision in many cases provided that the above decision of the Supreme Court is complied with, and you should expect to be held to the terms of the agreement if the criteria are met.
What can be done to make a nuptial agreement more likely to be upheld by a judge?
There are a number of steps that can be taken to ensure that the agreement is as binding as possible for you and your partner.
- Disclosure – There must be full and frank disclosure of all financial circumstances, including assets that are abroad. You and your partner must fully understand the implications of the agreement you are entering into and the rights and claims that you are each giving up by signing the agreement.
- Independent advice – Both you and your partner should receive independent legal advice from specialist family lawyers at the time you enter into the agreement.
- Timing – A prenuptial agreement must be entered into at least 28 days before the wedding to avoid any suggestion that there is pressure exerted on you to sign the agreement as the wedding date gets closer.
- Needs met – The agreement must meet the housing and income needs of the less wealthy party and any children of the relationship, by reference to the standard of living within the marriage.
- Complying with these requirements will mean that the agreement has the best chance of being legally binding in the future and will provide you both with as much certainty as possible regarding the division of your finances if your marriage should break down in the future.
How do I go about talking to my fiancé about this?
It can often be difficult to broach the topic of a pre-nuptial agreement. The concept can be considered unromantic at a time when you are in love and planning your wedding, and can be an added pressure which puts strain on your relationship. However, providing the conversations are dealt with in a careful and sensitive way, they can be a useful means of exploring attitudes towards financial matters, and planning your future together. Being honest about your reasons for wanting a prenuptial agreement can be a positive step towards a strong marriage.
I want to find out more about nuptial agreements, who do I contact?
If you would like to find out more about nuptial agreements, please call Claire on 01892 506 191 for a telephone consultation or request a call back at a time that suits you using our online form.