Pre-Nuptial and Post-Nuptial Agreements 

Until relatively recently, a pre-marital or pre-nuptial agreement (‘pre-nup’) was not really something worth having in this country.

While in many parts of the world it was relatively common for a couple to try and agree before they marry what would happen to their finances if they separate in the future, England and Wales lagged behind.

In 2010 that all changed with the Supreme Court’s decision in the case of Radmacher. Now, it is much more likely that a couple will be held to what they agreed in a pre-nup as long as the following criteria are met:

• The terms of the agreement are fair in the circumstances
• The needs of any children are not prejudiced
• Both parties had independent legal advice
• At the time of the agreement both parties provided financial disclosure to the other
• The agreement was in writing
• There was a sufficient period of time between the signing of the agreement and the wedding
• Neither party was under duress

If drafted properly and all the necessary criteria are satisfied, pre-nups can be a very useful tool to protect wealth and to provide both parties with a degree of certainty for the future. They can also help avoid lengthy and distressing litigation when a relationship breaks down.

Post-nuptial/marital agreements are the close relative of the pre-nup. Although there is no specific case law relating to them, the same principles apply to them and the same benefits flow from them. The only real difference is that they are entered into after (as opposed to before) the marriage or civil partnership.

We have extensive experience preparing pre-nuptial agreements and not just for the very wealthy. We have dealt with a range of agreements as wide as ring-fencing a client’s £100,000 inheritance from her father to setting out what would happen in a case involving a family business worth tens of millions of pounds.

The one thing all pre and post-nuptial cases have in common is two adults with a desire to minimise future conflict and cost by making a proactive agreement at a time when they can still communicate openly and honestly with each other.