For people planning a wedding, or those who are newly married, the last thing that is likely to be on their minds is the idea that the marriage might break down. However, whilst the divorce rate is falling, often, one of the main concerns for divorcing couples is whether their assets will be divided up fairly. This is where pre and post-nuptial agreements come in.
What Are Pre And Post-Nuptial Agreements?
- A pre-nuptial agreement, also known as a ‘pre-nup’, is an agreement entered into by both partners before the marriage has taken place. It is designed to help a couple to plan what they will do with their finances, should the marriage break down.
- A post-nuptial agreement, or ‘post-nup’, is similar, although formulated after the marriage has taken place whilst the couple are still living together.
Both agreements are designed to set out in written detail how the couple plan to split their assets in the event of separation or divorce. This should be discussed and agreed when both parties are happy in the relationship and thus more amenable to working together.
What Can Be Included?
Whilst pre and post-nuptial agreements are mainly designed to help couples to decide what will happen with their finances if the relationship were to break down, this is not all you might decide to include. The agreement can usually contain anything reasonable that the couple chooses, including:
- What happens to any property that either party owned separately before the marriage
- What happens to the family home
- What happens to assets bought during the marriage
- What happens to any jointly owned assets
- What happens with debts
- What happens with inheritance or any property given to one party before or during the marriage
- What happens to their pensions
- If one party will pay any maintenance to the other, how much and how long for.
The agreement should be reviewed regularly to allow for changes that may occur in the relationship such as children being born.
Why Have A Pre or Post-Nup?
It may seem unromantic to start planning for the breakdown of a marriage. However, currently, the starting point for division of assets in the English court is 50:50. If you want to protect assets that you may have brought into the marriage or inherited afterwards, securing a pre or post nuptial agreement is a must as it provides evidence of the parties intentions and a degree of security.
Other advantages of a pre or post-nuptial agreement are:
- The ability to identify assets, businesses and inheritances that belong solely to one partner with a view to ring-fencing these, if possible, on marriage breakdown.
- Providing security for both partners and any children, so that they can predict their financial future even when something as unpredictable as a marriage breakdown occurs.
- Agreeing where a divorce and any financial proceedings should take place, in the event of international marriages.
- Providing financial security for both parties especially where one or both may have been separated in the past but wish to remarry.
How Valid Are Pre And Post-Nups?
These agreements are not currently legally binding in England and Wales. However, the Court has a statutory duty to take them into consideration when deciding how the financial assets should be divided during the divorce process and this can provide both partners with a fairer outlook.
To maximise the likely validity of the agreement it is essential that the circumstances surrounding the creation of the agreement meet specific criteria set out by the Court. The couple must both enter into the agreement of their own free will, without undue pressure and with a full understanding of the implications of what they are agreeing to.
Both parties should have received independent legal advice from separate solicitors to ensure that they understand the consequences of the agreement and they should have made disclosure of their finances at the time of the agreement and before the document is signed.
If prepared correctly these types of agreements are taken very seriously by the court, but there are various factors that the they will consider when deciding whether to uphold the intentions of the parties as set out in the agreement including that the set criteria has been followed and that the agreement is fair.
We Can Help
Vyman Solicitors have experienced solicitors with specialist knowledge in the area of family law. We can help you to make the right decisions regarding your pre or post-nuptial agreement and are happy to answer any questions that you may have. Please call 0208 427 9080 to find out more and get started on your agreement as soon as possible.