Pre-nuptial and post nuptial agreements

The last thing anyone planning a marriage wants to think about is what happens if the relationship breaks down, but with the unhappy statistic of over 50% of marriages ending in divorce, considering making a pre-nuptial agreement is sensible.  Look at it as taking out an insurance policy that you hope you’ll never have to use –after all,  in other aspects of our lives we do that all the time, without thinking twice.

With that in mind, here is some information about pre-nuptial agreements to help you.

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What does a pre-nuptial agreement do?

A pre-nup sets out what will happen to property and assets if a married couple divorce and may also covers what would happen if one spouse dies (this would be backed up by a will).

Are pre/post nuptial agreements legally enforceable?

Whilst pre-nups are not formally recognised in English law if they are drawn up correctly and in accordance with approved guidelines, they are something the court will have serious regard to and convincing a court in any subsequent divorce proceedings to deal with finances in a different way to that set out in the agreement may be very difficult. As the courts now take these agreements so seriously, it is better to have one in place than to have nothing to protect you.

The reality is that, more often than not, if a couple have taken the trouble to talk about financial arrangements and record the agreement at the outset or during the marriage, they are more likely to simply go ahead with that agreement if things go wrong.

When is a pre-nup important?

Arguably, anyone getting married should consider one, if only to give both parties peace of mind that they know what arrangements are agreed if the worst happens. But it is particularly important in the following circumstances:

If you have property or assets you have built up before your relationship with your future spouse began and both parties agree that should be protected;
If one partner has received or is due to receive money or assets from family which they wish to protect;
If one or both parties have a child/children from a previous relationship and they wish to safeguard assets for their future;
If there are existing debts which you want to take account of;
If finances are complex, for example if there is a business involved.
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What is a post nuptial agreement?

A post nup does the same as a pre-nup but is entered into at any time during a marriage. This might be shortly after the marriage has taken place, if it was too close to the wedding to sign it (see below) or it may be several years after marriage. It is often the case that couples consider a post nuptial agreement where an inheritance is received that the parties agree should be protected in the event of a divorce, or if parents or family lend or gift money but want to make sure this is retained by one party or even returned, in the event the parties divorce.

What are the guidelines to making a pre-nuptial agreement?

Arguably, anyone getting married should consider one, if only to give both parties peace of mind that they know what arrangements are agreed if the worst happens. But it is particularly important in the following circumstances:

The agreement must be freely entered into by both parties without any pressure from one party on the other.
The agreement should be signed at least 28 days before the marriage – any shorter period may weaken the strength of the agreement – if it’s too close, it can be signed after the marriage as a post-nup.
You must both fully understand the implications of entering into the agreement.
Before any agreement is signed each party must be fully aware of the financial position of the other.
You should ideally both take independent legal advice before entering into the agreement.
The agreement must be fair to both parties and should make provision for any children and/or future children.
The agreement should be regularly reviewed whether there are a change in circumstances or just because of passage of time. This does not necessarily mean changes will be made, but it is important to show both parties have considered whether the terms are still fair.
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If you’re thinking of making a pre-nuptial agreement, we would always advise you to start talking about it well ahead of your planned nuptials.

For more information contact us on email at hello@vinelaw.co.uk or call 01945 898090 to chat with Melinda Smith.