Nuptial Agreements

In many parts of Europe, pre-nuptial agreements and post-nuptial agreements are held to be legally enforceable in divorce cases provided that both parties received sound legal advice and signed up to the nuptial agreement without being coerced or bullied into doing so.

In the UK, it is left to the discretion of the court to decide what is appropriate and whether the terms of the nuptial agreement should be upheld or not. However, since the important leading case of Radmacher v Granatino and further, the latest recommendations from the Law Commission, it is now clear that if certain formalities have been met at the time the nuptial agreement is drafted and executed, a court is likely to find that the agreement is binding on the parties.

If you are concerned about protecting wealth on marriage, it is better to have a nuptial agreement in place than not to have anything at all, even if there can be no absolute guarantee that all of the provisions of the nuptial agreement will be upheld by the court.

The most important thing is to get proper legal guidance from a specialist firm such as ours where our team have extensive expertise in the area of nuptial agreements.

Here at Oldham Marsh Page Flavell we will take the time to gain a full understanding of your objectives, provide practical advice on property ownership, financial structures and the pooling of resources.

We will ensure that your agreement has a maximum influence in the event of a separation, providing you with much needed clarity and certainty at a difficult time.

Nuptial Agreements - Frequently asked Questions

What’s a pre-nuptial agreement?

People planning to enter a marriage or civil partnership often decide to enter into an agreement that shows what they intend to happen to their money and property if the marriage or civil partnership were to end.

Are nuptial agreements binding on the court?

Nuptial agreements are not strictly binding on the court in the event of a later divorce, but it is likely that the agreement will be respected by the court unless the effect of the agreement would be unfair.

In order to do the best job of ensuring that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full and take independent legal advice on the agreement and its effects.

It is good practice to get the agreement finalised in good time before the wedding or civil partnership ceremony so that neither or you feel undue pressure to agree to anything.

What sorts of things does a nuptial agreement cover?

A nuptial agreement is a bespoke document drawn up for the two of you for your particular circumstances, so it can cover almost anything you want it to. There are certain things that couples usually think about when deciding how they would want to work things out if the marriage does not work:

• what would happen to property either of you brought into the marriage?
• what would happen to the family home?
• what would happen to any property given to you or inherited during the marriage or any income or assets derived from trusts?
• what would happen to money held in joint accounts and any property purchased jointly?
• what would happen to any saved money earned during the marriage?
• what would happen to your pensions?
• how would you deal with any debts?
• would either of you pay or receive any maintenance and, if so, for how long?
• what kinds of events might require the agreement to be reviewed?
• what kinds of arrangements would you like to make for any children you have or are likely to have, both in financial and in practical terms?

What happens if we have children?

A nuptial cannot prejudice the interests of any children in your family. It is usual to build in provision for a review of the agreement if and when you have children, so that the children’s needs can be considered and assessed at that time, with possible changes made to any expectations of the adults.

In the event of a divorce, if the court is asked to intervene in financial arrangements its first consideration is always the children involved. If the court considers that any agreement of the adults may adversely affect their children, e.g. by restricting any expectations of a lifestyle they would otherwise have had, it is likely to consider that it is not fair to uphold the agreement in the circumstances. It is not possible to contract out of giving financial support to or for a child.