What is a prenuptial agreement?
A pre-nuptial agreement (also known as an ante-nuptial agreement or pre-marital agreement) is a legal agreement, which is documented, between two individuals before they get married. The agreement sets out how the couple wish their existing assets to be divided if they split-up.
What is a postnuptial agreement?
A post-nuptial agreement is the same as a prenuptial agreement, but it is made after you are married. Again, the agreement will set out how the couple wish their assets to be divided if they split-up, separate or divorce.
Are nuptial agreements binding?
The short answer is, no. Nuptial agreements are not legally binding. A nuptial agreement cannot interfere with the court’s broad power to decide how to redistribute assets and income on a case for financial settlement between a couple. When considering the case, a judge must give appropriate weight to a nuptial agreement. It may be that a nuptial agreement should be given enough weight to tip the scales in your favour, but it will depend on all the circumstances of the case.
However, when done properly the nuptial agreements can be quite decisive. The Supreme Court in the case of Radmacher v Granatino  UKSC 42, held: “The court should give effect to a nuptial agreement that is freely 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 the agreement.”
This often raises the question what is fair? The three principles are, the needs of each of the parties, compensation (once the needs are met), and sharing.
If a nuptial agreement deals with assets and income applying the three principles, then it is highly likely the nuptial agreement will be upheld by the court.
To be a qualifying nuptial agreement, the agreement must:
- be contractually valid (the validity requirement)
- it must be executed as a deed (the formation requirement)
- it must be made within 28 days immediately before the wedding or civil ceremony (the time requirement)
- both parties must have received financial disclosure about the other parties’ financial position when entering into the agreement (the disclosure requirement)
- both parties must receive independent legal advice (the advice requirement)
Contents of nuptial agreements
Nuptial agreements must set out which party owns or will own the assets on a future breakdown of the marriage. The nuptial agreement defines:
- “matrimonial property” and
- “non-matrimonial property” or
- “joint property” and
- “separate property”.
Matrimonial property (or joint property) includes assets during the marriage and assets in joint names, such as the family home and joint bank accounts.
Non-matrimonial property (or separate property) usually includes:
- Assets owned before the marriage.
- Inherited assets.
- Gifts received by one party during the marriage.
Nuptial agreements deal with income, like earnings and future earnings as well as interests under any trusts. Nuptial agreements can deal with provision for children, but do not normailly deal with financial provision for any future children. When there is a significant change in circumstances during the marriage, like the birth of children, are dealt with by review of the terms of the agreement; a review clause is inserted into the nuptial agreement which sets out a review and when it should take place. Nuptial agreements do not usually include non-financial arrangements relating to children.
Nuptial agreements can be a minefield for couples intending to marry or who are already married. It is important to get good legal advice early. Britton and Time Solicitors offer a fixed fee initial consultation at £90 plus VAT. Depending on the complexity of the nuptial agreement, prices start from £1,800 plus VAT. If you’d like to speak to one of our Solicitors, then call (01273) 726951 today or click the contact us section of the website.