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Drafting nuptial agreements to protect your wealth, assets and business interests
Prenuptial and postnuptial agreements are used where one or both partners have wealth and assets accumulated prior to the marriage which one or both wishes to protect in the event of the marriage failing. They are often the best way to ensure that should your marriage end, there will be as little conflict as possible about how your assets should be divided. Prenuptial agreements are made before the marriage and postnuptial afterwards. Our family law solicitors have experience in both.
As an example, in some cases, a couple will sign a nuptial agreement to protect existing family or business assets which they intend to pass on to children from a previous relationship.
Is a pre- or postnuptial agreement legally binding?
They are not currently legally binding in England and Wales but, that does not mean that they are of no use.
If one partner disagrees with the effect of a nuptial agreement on divorce and chooses to seek a financial order in court, a judge is likely to take a prenuptial or postnuptial agreement into account and is likely to support it, as long as certain safeguards have been met.
Recent cases show that nuptial agreements are being upheld in many instances. For an agreement to be upheld, the following safeguards should be met:
- Both parties received independent legal advice about the agreement at the outset
- Neither party was put under pressure to sign the agreement
- There has been no significant change which would make the agreement inappropriate (for example, the birth of children)
- In a prenuptial agreement, there was a sufficient period of time between the signing of the agreement and the wedding, at least 28 days before you marry
- Full and frank financial disclosure of both parties’ assets was made prior to the agreement. i.e. assets were not hidden
- The terms of the agreement have to be fair and realistic. If the division of assets is weighted too heavily in favour of one party, it may be judged to be unfair by the courts and disregarded.
Any agreement should be reviewed and amended periodically during the course of the marriage and particularly when any children are born to ensure the terms remain fair.
