Here, Helen Pidgeon, the Principal of Helen Pidgeon Solicitors, family law specialists in Chiswick, considers when and why a pre or a post nuptial agreement might be something to consider in England & Wales.
A nuptial agreement seeks to limit the potential awards the court could make on divorce. A pre-nuptial agreement is made before a marriage ceremony and a post-nuptial agreement is entered into any time afterwards and the courts do not view one more favourably than the other. Reasons for doing it after the wedding might be: (i) that there has been too little time to agree a pre-nup before the marriage or, (ii) there has been a period of separation which may or may not turn out to be permanent or, (iii) there has been an event such as a significant gift from a parent or an inheritance to protect.
Who should have a pre or post- nuptial agreement?
- Those with particular assets they wish to protect such as a received inheritance or potential gifts of inheritance, trust interests or a share in a family business.
- Individuals who have independent wealth and wish to maintain financial independence should their marriage end.
- International couples moving between countries where the law in the country in which they could divorce may differ from their previous intentions or expectations.
- 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 wide discretion of a Judge. The courts’ previous decisions have evolved so that where there are “significant” assets, an equal division of the assets held by the parties will be the starting point unless there are good reasons otherwise. 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 nuptial agreement. Another motive is to protect assets owned by either party prior to the marriage or which might be anticipated during the marriage.
So what value does a pre or post nuptial agreement have?
They are not legally binding like a contract but they can be upheld by the family court. The value that the court gives to a nuptial agreement is likely to be influenced by the length of the marriage, the financial resources of each of the spouses 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.
How to ensure the divorce court gives effect to a pre or post-nuptial agreement.
If challenged at the time of a divorce, a nuptial agreement is more likely to be upheld if it is entered into without any undue influence and will not lead to undue hardship. This can be achieved by:
- Providing financial disclosure.
- Both parties having their own independent legal advice from a family lawyer; preferably, one like me who specialises in such agreements.
- 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 ceremony occurs. If you are considering a pre-nuptial agreement, ideally discussions would begin and lawyers be instructed about 6 months prior to the marriage.
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.
References in this article to divorce proceedings also apply to the dissolution of a civil partnership.
This article refers to the law of England and Wales.