Pre-Nuptial and Post Nuptial Agreements

The last ten years have seen the pre-nuptial agreement become part of married life in the UK.

Whether in seriousness or humour, it is likely that couples planning a marriage today, have at least considered the idea of an agreement that guides the way in which they would separate, if their marriage fails.

Before 2010 the “Pre-nup” was something from America, but after the landmark English case of Radmacher v Granatino in 2010, it became an acceptable part of courtship.

A pre-nuptial agreement aims to achieve greater certainty about how family resources (income and capital) are divided at the time of divorce.

There are basically three types of pre-nuptial agreement

1. An agreement which attempts to ring fence pre-marital assets from the assets that are acquired in the marriage.
2. An agreement that attempts to ring fence specific future assets, such as likely inherited wealth.
3. An agreement that attempts to limit the ability to share income and assets that are generated in a marriage.

As these agreements have only been in circulation for a few years, lawyers are only slowly beginning to understand how the divorce courts will interpret them. Broadly speaking, if you enter into a prenuptial agreement, you should not be surprised if you are held to it.

Where pre-nuptial agreements have been challenged in the courts, there seem to be two approaches: 

1. If the agreement has been entered into in a way that prejudices one of the parties to it (poor disclosure of resources, too soon before the marriage, no independent legal advice or some form of oppression) then the courts can give the agreement such weight, as they consider appropriate.
2.  If the agreement does not fail because of the above, then the extent of the challenge is likely to be limited to the “Needs” of the economically weaker party to the agreement. If the economically weaker party to the marriage is a man, than the “Needs” are likely to be less generously interpreted than if he were a woman.

Post-nuptial agreements are far less common but are worth considering if: 

1. You are a married couple (who might already have a pre-nuptial agreement) and are planning to move abroad, or an international family planning to move to England.
2. If you already have a pre-nuptial agreement and

• There has been or is likely to be a significant change in one of your financial circumstances.
• If you have been through a period of separation or other marital hardship, and want to define how you will patch things up.

Pre- and post-nuptial agreements really do need specialist legal advice. Where there is an international element or the future possibility of one, then legal advice in other counties is an essential part of the advisory process.

Experience

Cross-jurisdictional advice and drafting of pre- and post-nuptial agreements between the following jurisdictions:

• England and Wales, Scotland, The Channel Islands, France, Monaco , Switzerland, Israel, Kuwait, Oman , UAE, USA ( California, Florida, Massachusetts New York, Texas), Australia

Advising and representing clients in respect of disputes connected to cross-jurisdictional prenuptial agreements between England, Channel Islands, UAE, USA, Monaco and Switzerland.

Further Information

International Post and Prenuptial Agreements