Pre-nuptial and post-nuptial agreements are commonly becoming part of a family’s overall financial planning.

They are particularly useful if you are trying to protect inherited assets or a family business, or if one spouse wishes to protect assets they have brought to the marriage. They can simply set out how you would intend to separate your finances in the event of relationship breakdown which can then minimise conflict.

Whilst such agreements cannot prevent one party from trying to seek additional financial provision through the courts in a divorce, increasingly in such cases the courts are upholding the terms of agreements as long as certain 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. This option can be helpful to protect inheritance received by one party or assets transferred by the family to one spouse but after the marriage has taken place.

We have extensive experience of drafting such agreements as well as undertaking reviews and advising on whether the terms should be adjusted with the passage of time. Agreements should be reviewed after an agreed period of time (usually 3-5 years) or change in circumstances such as the birth of a child.