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Pre and Post-nuptial Agreements
A nuptial agreement can provide a degree of insurance and peace of mind with regard to protecting financial assets should the marriage end in divorce. Nuptial agreements used to be regarded as only for the wealthy. The reality is that people from all walks of life can and do enter into nuptial agreements. Nuptial agreements can be either pre-nuptial and entered into before the marriage or civil partnership, or post-nuptial if entered into after the couple marry or enters into a civil partnership.
Marital Agreement Solicitors
Pre and post-nuptial agreements have the same rationale, which is to seek to ensure that financial assets and any liabilities are dealt with in a particular and agreed way in the event of a breakdown of the relationship.
A post-nuptial agreement is an agreement entered into after the marriage. We can advise you on pre and post-nuptial agreements to help you protect your financial assets.
Nuptial agreements are not romantic, and like most things in life, people hope and intend that a marriage will last. Many people enter into a pre or post-nuptial agreement and just want the reassurance that if their marriage unfortunately ends, there is an agreement in place which is fair and protects their financial positions.
In a way, the best time to make a fair financial agreement and a nuptial agreement is at an early stage when the parties care for each other -. In contrast, if there is no agreement in place and the relationship ends, it is possible that mutual goodwill might no longer exist, and there might then be more of a focus on dispute.
Pre and post-nuptial agreements can help head off disputes and avoid costly financial remedy court proceedings and hearings, reduce stress, and avoid large legal fees by setting out clearly in a contract the terms of a financial settlement.
This is not to say that the courts must implement a nuptial agreement. If a nuptial agreement is entered into, and there is a dispute, the court can then deal with a party’s application by deciding on whether the nuptial agreement is binding at an early stage of any financial remedy proceedings, which will likely avoid protracted and expensive court proceedings. In an average financial remedy dispute case where there is no agreement, court proceedings can take more than a year to resolve, and there are typically at least three hearings before the court imposes a settlement at a final hearing.
Why enter into a pre or post nuptial agreement?
Nuptial agreements are not legally binding in England and Wales, although they are regarded by the courts as decisive, provided that certain conditions have been met and that the agreement is fair.
When a couple decides to enter into a marriage or partnership and wish to enter into a legal contractual agreement with regard to their money, assets and property, they can have a pre-nuptial agreement. The Supreme Court, in the case of Radmacher v Granatino (2010), stated that “The Court should give effect to a nuptial agreement that is fairly 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. “
Since 2010, nuptial agreements have been gaining further ground. The Law Commission recommended to the government in 2014 that legislation be introduced to make what the Commission described as “qualifying nuptial agreements” legally binding, provided that its requirements were complied with regard to their completion. The government has still to provide a definitive response to the Law Commission’s recommendation, and consequently, no legislation has been introduced by parliament about the validity of nuptial agreements.
Nuptial agreements are likely to be decisive where the Law Commission’s requirements are in place. These include that there is a valid contract entered into by the parties freely without any undue pressure on either party, the nuptial agreement must be entered into at least 28 days before the wedding or civil partnership, each partner must have received at the time of making of the agreement, and provided substantive disclosure of each other’s financial positions, both parties should have received independent legal advice. Both parties must state in the nuptial agreement that they understand that by entering into the agreement, they court’s ability to make financial order is being removed – although this is subject to the court deciding that the agreement is not enforceable if it does not provide for their financial needs.