Prenuptial and postnuptial agreements

Nuptial agreements are increasingly common. They help provide you with security at an uncertain time and help protect your assets.

When a couple plan their wedding day, it's unlikely that they expect their marriage to fail. However, the divorce rate in England and Wales is estimated at 42% and the average marriage duration for opposite-sex couples is placed at just over 12 years. With this in mind, planning for every possibility could be beneficial for both you and your spouse.

If you're considering protecting your wealth ahead of marriage, private wealth protection might be right for you. One type of wealth protection is a prenuptial agreement, also known as a prenup, which can provide certainty if a relationship breaks down.

Mills & Reeve's specialist prenuptial agreement lawyers are experienced in helping clients plan for the future. They will use their skill and practical understanding to guide you through the prenuptial and postnuptial agreement process.

Our global network of contacts and practical experience mean that you'll have access to some of the best legal minds around. You can be confident in our ability to advise you, whatever the circumstances. Get in touch today and see how we can help

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What are prenuptial agreements?

A prenuptial agreement is made by a couple before getting married or entering into a civil partnership. This agreement outlines how assets should be split between the couple in the event of a divorce or the end of their civil partnership.

Prenups are a form of wealth protection that allows you to protect your assets and live as comfortably as possible after a divorce. Any form of wealth or asset that you've accumulated before marriage, during your marriage or even after you've separated can be included in a prenuptial agreement.

They can also be used to confirm what rights children from previous relationships have to certain assets, set out what should happen to you and your partner's assets on death and clarify what should happen to certain assets to protect your children's and grandchildren's inheritances.

What is a postnuptial agreement?

A postnuptial agreement works much the same as a prenup. The major difference here is that it's entered into after a couple is already married or in a civil partnership. In this case, the agreement sets out exactly how assets should be distributed between the couple should the relationship break down. It's a written contract that is signed by a couple during their marriage.

There are several reasons why a couple might decide to enter into a postnuptial agreement after marriage. It may be that the couple already have a prenup and want to confirm that the information in that agreement still stands. In some cases, a couple may decide to take out this agreement after moving to the UK in order to protect their assets should the marriage break down after the move.

Whatever the reason, if you are already married or in a civil partnership and want to plan for the future, our team of prenuptial and postnuptial solicitors can help.

Are pre- and postnuptial agreements legally binding?

In the UK, a prenuptial agreement is not a legally binding agreement. However, if it meets the qualifying criteria set by the Supreme Court, there's a presumption that it will be upheld by the Family Court.

In 2010, the Supreme Court decided that the courts should give more weight to prenups but retain the ultimate decision on whether they should be upheld. The court takes into account whether the agreement meets the criteria and is fair to both parties. This 2010 ruling also set out the circumstances in which a prenuptial agreement should be binding.

Similarly, a postnuptial agreement is not legally binding. The landmark Radmacher v Granatino case ruled that courts should uphold a prenuptial agreement if it's fair - and it follows that any valid postnuptial agreements should also be upheld. Therefore, it's difficult to challenge the terms of this type of agreement.

In fact, postnuptial agreements are more likely to be upheld than prenups because the marriage or civil partnership is already in place. There is no wedding creating a deadline for the couple to sign up. This makes it less likely that the couple is under pressure to enter into an agreement in which they may not be invested.

What is needed for a prenuptial agreement?

For your prenuptial agreement to be upheld in court, these are the main considerations:

• Both parties must have received legal advice and be fully informed of what prenup agreements involve and understand the implications of the agreement.
• The agreement must be fair.
• The agreement must be contractually valid. Therefore, it should be drawn up by a qualified family solicitor.
• Both parties' needs should be met and they must enter the prenup agreement freely.
• Full disclosure of all assets at the time that the agreement is drawn up.
• The prenuptial agreement must have been made at least 28 days before the wedding.

What is needed for a postnuptial agreement?

For your postnuptial agreement to be upheld in court, these are the main considerations:

• Both spouses (or civil partners) should receive independent legal advice before signing the agreement.
• The full assets of each party should be disclosed properly.
• There should have been no significant changes to the financial or family situation.
• There should be no pressure on either party to sign the agreement.
• The terms of the agreement should be fair.