For most engaged couples the list of wedding preparations does not include drafting a nuptial agreement. What could be less romantic than contemplating what might happen on divorce or separation? It is not considered an easy topic to discuss and yet more couples are entering into nuptial agreements viewing them as providing certainty and transparency if things do not work out as planned.
Some people fear that raising the topic of a nuptial agreement with their partner will signal that they do not view the marriage as being long term or that they feel there are issues within the relationship. However, this view is changing as couples value nuptial agreements as an opportunity to consider their financial landscape upon marriage and to provide transparency should the marriage break down.
What is a pre- nuptial agreement?
A couple entering into a marriage or civil partnership reach an agreement detailing what they intend to happen to their assets in the event that the marriage ends. Pre-nuptial agreements can be useful when:
one party has substantially greater capital or income than the other
one party has been gifted money from relatives to assist, for example, with a house purchase
one, or both parties, wish to protect assets owned prior to the marriage, including inheritances or family trusts
it would be beneficial to define what is considered to be ‘matrimonial property’ or ‘non-matrimonial property’, for example in relation to business assets owned by one party prior to the marriage
one or both of you has children from a previous marriage or relationship and wishes to protect assets for the purposes of inheritance planning
one or both parties has a connection with, or property in, another jurisdiction
Post nuptial agreements
Post nuptial agreements operate in a similar way to pre- nuptial agreements and can assist those who did not enter an agreement prior to marriage, have received a substantial asset since marriage such as an inheritance that they feel should be ring fenced or sometimes when there has been a separation followed by a reconciliation.
Are nuptial agreements recognised in this country?
Although nuptial agreements do not have a statutory basis in England and Wales, it is likely that an agreement would be upheld provided that it satisfies certain criteria to ensure fairness to both parties. The judgement in the landmark case of Radmacher v Granatino in 2010 set out that ‘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 the agreement’
In 2014 the Law Commission published a report with recommendations that ‘qualifying nuptial agreements’ could be entered into to make binding arrangements for the financial consequences of divorce BUT it is essential for certain procedural safeguards to be followed and the agreement must be fair so that each party’s financial needs and those of any children are met.
A misconception is that nuptial agreements are only for the ‘super rich’ and famous to protect their assets in case of divorce and therefore such agreements only benefit one party
What are the key requirements for a nuptial agreement to be binding?
Its terms must be fair (when set against the parties’ financial circumstances at the time of divorce)
It must be entered into at least 28 days before the marriage and there must not have been any duress
It is evident that both parties fully understood the terms and implications of the agreement and either took separate independent legal advice or had the opportunity to do so
Both parties provided full financial disclosure prior to the agreement being entered into
However, it is important to note that needs trump all. So even where a nuptial agreement has been entered into, each party’s needs must be met. Consequently, a court can order that assets and money ring fenced in the nuptial agreement be distributed to the other party to meet their needs or the needs of any children. It would also be advisable to review any nuptial agreement at regular intervals especially following the birth of any children.
Why should I bother entering into a nuptial agreement?
Although it may not be the most romantic of topics to discuss, a nuptial agreement can provide security and clarity over finances in the event that the marriage does not last. This puts couples in control and enables them to have discussion about how they view their assets and finances before the topic becomes potentially much more tricky and costly upon divorce.
It is important to obtain legal advice before entering into any nuptial agreement. If you are contemplating marriage or cohabitation and wish to discuss either nuptial agreements or cohabitation agreements then please contact our family law partner, Rachael Anderson, on 01306 877592 or Rachael.email@example.com