Pre And Post Nuptial Agreements –What Are They?
Helen Pidgeon looks at how effective pre and post nuptial agreements are in divorce or dissolution settlement.
Helen Pidgeon, the principal of Helen Pidgeon Solicitors, family law specialists in Chiswick, looks at how effective pre and post nuptial agreements are in divorce or dissolution settlement.
Pre and Post Nuptial Agreements –what are they?
For the purposes of this article, marriage shall include a civil partnership and divorce shall include a dissolution of a civil partnership and any other references to a marriage includes a civil partnership.
A pre-nuptial agreement is the settlement of the financial claims a couple could have against each other upon a divorce. It is made before a marriage. A post nuptial agreement is a settlement of the same claims, except it is entered into after a divorce. Reasons for doing it afterwards might be that there has been too little time to agree a pre-nuptial agreement beforehand or, there has been a period of separation which may or may not turn out to be permanent or, there has been an event which has made the couple want to clarify these arrangements.
Who should have a Pre or Post nuptial agreement?
Those with particular assets they wish to protect such as received inheritance or potential gifts of inheritance, trust interests, a share in a family business, or perhaps the performance related element of their income.
Couples who have independent wealth and who wish to maintain financial independence should their marriage end.
International couples moving between countries.
Couples for whom it is not their first marriage and may have assets they wish to protect perhaps for their children from a previous marriage.
Pre and Post Nuptial Agreements - why are they a good idea?
Financial outcomes on divorce are uncertain and subject to the wider discretion of a Judge. The courts previous decisions have evolved so that where there are significant assets, an equal division will be the starting point to dividing the assets held by both parties. Although, marriage offers financial protection and recognition to the financially weaker party, this lack of clarity can make the court process uncertain and expensive for divorcing couples. For many couples, avoiding the stress, expense, uncertainty and acrimony if their marriage breaks down, is the main reason for entering into a pre or post nuptial agreement. Another motive is to protect assets obtained by one party prior to the marriage.
What is the current attitude of the courts towards Pre and Post nuptial agreements?
Whilst pre and post nuptial agreements are not legally binding, and therefore unenforceable as a contract between the divorcing couple, the attitude of the English courts towards them has changed considerably over the years following the 2010 case of Radmacher v Granatino “Radmacher”. Following the decision reached in this case, there would need to be unusual circumstances for the court to depart materially from the terms of a pre or post nuptial agreement that they had already agreed between themselves.
The significance of the “ Radmacher” case is that when considering all the facts and circumstances, a court should give “ effect to a nuptial agreement (whether made before or after the marriage) where it has been freely entered into by each party with a full appreciation of its implications, unless in the circumstances it would not be fair to hold the parties to it .”
Since “ Radmacher” , English pre and post nuptial agreements have become increasingly popular.
So what value does a Pre or Post Nuptial agreement have?
The weight that the court gives to it is likely to be influenced by the length of the marriage, the financial resources of each of the spouses on divorce, and whether there are any dependent children. The extent to which the agreement foresees future events and deals with them in a fair manner, will also determine the eventual influence on the decision that the court makes.
How to ensure the English court gives effect to a Pre or Post nuptial agreement.
An agreement is more likely to be upheld if challenged at the time of a divorce, if it has been properly drafted; entered into without any undue influence and will not lead to hardship. This can be achieved by:
Providing financial disclosure. This can be done by way of a schedule summarising the couple's capital (including pensions) and income positions.
Having independent legal advice from a family lawyer (preferably one like me who specialises in such agreements) for both parties. This approach will help to demonstrate that no pressure was applied by one party.
Making suitable provision for each of the couple and for any dependent children so their reasonable needs are met.
It should be signed in good time before the wedding. We recommend that it is signed no fewer than 4 weeks before the wedding and preferably well before then.
If you are considering a pre-nuptial agreement, ideally discussions would begin and lawyers be instructed about 6 months prior to the wedding.
What sort of terms should the agreement include?
Every agreement is different and tailor made to individual circumstances. It might simply seek to exclude assets acquired or inherited before the marriage or, property inherited during the marriage, and leave the other assets to the discretion of the court on divorce. Or, it can dictate what the award should be depending on the duration of the marriage and envisage alternative provision if there are dependent children.
The agreement is more likely to be viewed as fair, if it ensures that both parties' needs and the needs of any dependent children are appropriately met. This will be influenced by the standard of living enjoyed by the couple to the marriage.
The extent to which a pre or post nuptial agreement foresees future events and allows for changing circumstances will determine its eventual influence.
How can we help?
Please get in touch with us as far in advance of your wedding as possible to discuss your requirements and costs (which are far less than those incurred upon a divorce). We will always endeavour to work constructively with the solicitor acting for your future spouse to make the experience amicable, practical and straight-forward.
Helen Pidgeon is a solicitor, mediator and collaborative lawyer and director of Helen Pidgeon Solicitors specialising in all aspects of family law. Do contact us if you require further assistance to help you decide what is right for you and your family.
This article is intended as general information about the law. If you require advice about your particular circumstances then you should seek your own independent legal advice about the approach you should take and how this will affect you.
Helen Pidgeon Solicitors
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February 12, 2020