If you are considering how to protect your business interests, inheritance or family wealth ahead of marriage, or you have been asked to sign a nuptial agreement by your fiancé/e, it is important that you first understand the difference between a pre-nuptial and post nuptial agreement and get an idea of what each option means for you. In this Q&A, Amélie Viljoen, solicitor in the Family team at JMW, answers some of the questions you may have on your mind.

1. What is the basic difference between a pre-nup and a post-nup?

As the names imply, the key difference is when you sign it. A pre-nup is agreed before marriage, while a post-nup is agreed after the wedding. Either can record what you would like to happen to property, savings, income, pensions, debts and business interests if you separate or divorce.

2. Are pre-nups and post-nups legally binding?

They are not automatically binding in England and Wales. However, in Radmacher v Granatino [2010] UKSC 42, the Supreme Court said that an agreement should usually be upheld where both people entered into it freely, understood its implications and it would be fair to do so. A properly prepared agreement can therefore carry significant weight on divorce or separation.

3. Why might we choose a post-nup?

You might consider a post-nup if there was not enough time to finalise a pre-nup before the wedding, your financial circumstances have changed since you got married, or you want to update an earlier agreement. Some couples also use one when rebuilding their relationship after a difficult period.

4. What steps should we take to ensure our pre-nup / post-nup is valid?

You should each receive advice from a different specialist Family lawyer, exchange comprehensive financial information and take enough time to understand and discuss the proposed terms without pressure. Your lawyers should test how the agreement would work in practice – for example, whether it provides appropriately for housing, income and any children of the marriage. This process helps the person proposing the agreement to make it more robust and gives the other person a genuine opportunity to understand the implications of the agreement and negotiate suitable protection.

5. Can an agreement protect inherited wealth or a business completely?

An agreement can clearly identify assets which you intend to keep separate and reduce uncertainty, but it cannot guarantee complete protection. The court retains the ultimate discretion in deciding how assets should be divided on divorce and it may reach a different outcome if following the agreement would be unfair.

If you are considering proposing a nuptial agreement, or have been asked to sign one, early advice can help you understand your options. Our specialist Family lawyers can advise confidentially on the terms, timing and safeguards appropriate to your circumstances.