It is becoming more commonplace that when couples are thinking about tying the knot, whether marriage or civil partnership, wealth planning and protection form part of the thought process. This is especially where couples are marrying for a second time and, for example, want to preserve or be able to pass on their wealth to their children from a previous marriage.
A pre-nuptial agreement is a formal agreement entered into before a marriage or civil partnership which sets out who owns what at the time of marriage and also how the couple envisage that those assets should be divided if there is a divorce or separation.
A post-nuptial agreement is exactly the same, but entered into after the marriage or civil partnership. Neither form of agreement is legally binding in England and Wales but the direction of travel in the family courts over recent years has very much been that the Court will attach considerable weight to these agreements and hold parties to the terms agreed unless it can be proved that:
- The agreement was not entered into freely by each party
- The parties did not have a full appreciation of the implications of the agreement at the time of signing it
- It would be unfair to hold either party to the agreement
Whilst the Court is not bound to give effect to these agreements, it will be more likely to uphold the terms if the following steps are taken before entering an agreement:
- Obtain independent legal advice – it is strongly recommended that each party to the agreement obtains independent legal advice from a family lawyer who specialises in the drafting of pre and post-nuptial agreements prior to signing. This helps to show that you both understood the implications of the agreement when entering into it.
- Full and frank financial disclosure – full disclosure of your assets and income to your partner helps to show that you were both fully aware of the financial implications of the agreement. It is important that both of you have all of the information which is material to your decision, and that both of you intend that the agreement should govern the financial consequences of your marriage coming to an end.
- Avoid allegations of duress or undue influence – the agreement must be entered into freely by both of you and there should be no evidence of duress or undue pressure before entering into the agreement. A usual safeguard against allegations of emotional pressure is that pre-nuptial agreements should be entered into at least 21 days before the marriage.
- Ensure the agreement is realistic and fair – if the pre or post-nuptial agreement is weighted too far in favour of one person, there is less chance of it being upheld by the Court on divorce. Whilst the reasoning behind signing a pre or post-nuptial agreement often includes securing a more favourable financial settlement for one of you, it is still important to ensure that the agreement is realistic in light of current divorce law. The Court is unlikely to uphold an agreement that would result in one of you being left in a predicament of real need, whilst the other enjoys an excess. Equally if the dedication of one of you to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold you to an agreement that entitles the latter to retain all that he or she has earned.
- Provide for future changes – it is recommended that pre and post-nuptial agreements should only last until the birth of the first child of the family or for up to a period of five years, with a review built in to decide whether the agreement remains fair or needs updating to reflect a change in circumstances.
At Leeds Day, our family solicitors have considerable experience in drawing up and advising clients on pre and post-nuptial agreements, and are able to call on specialist expertise from other disciplines in the firm where appropriate, whether that is in relation to business owners who are looking to protect their business for future generations, beneficiaries of family trusts or people that just want the certainty of what will happen if the marriage were to break down, dealing with problems before they arise.
For more information, contact the family team on 0844 567 2222 or send an email to firstname.lastname@example.org