Nuptial Agreements – Do you need one and will they protect you?

GEPP

18 April 2024

By James Compton

Marriage is an important step in many relationships and reflects the deep affections you feel for your partner. Beyond affection marriage is more than a symbolic gesture and has legal implications upon you and your partner particularly with the division of finance and assets. It remains important to be wary of unforeseen circumstances and the implications they could have on your future. Both pre-nuptial agreements and post-nuptial agreement can help you feel secure against the unthinkable. The agreements will provide a roadmap for couples by setting out financial arrangements and asset distribution in the event of divorce or death.

Pre-Nuptial Agreements – What are they and why would we need one?

Pre-nuptial agreements are a practical tool to safeguard an individual’s assets especially in scenarios involving significant wealth disparity, inheritance, or business interests. Pre-nuptial agreements will be agreed before wedding vows are given and allow couples to establish financial expectations upfront and avoid potential conflicts down the road should circumstances change. This can greatly benefit and ease transitions through periods of change.

If parties reach the point of separation without a nuptial agreement the division of assets can be a strenuous process. Parties may need to instruct solicitors and proceed through various stages of negotiations. If an agreement cannot be reached division of assets will be decided at the discretion of the courts which can often mean unpredictable outcomes. This process of itself can be costly, time consuming and stressful for both parties.

Post-Nuptial Agreements

If you have already completed your wedding vows and wish to benefit from the protection of a nuptial agreement couples can instead complete a post nuptial agreement. Post-Nuptial agreements and are executed after the wedding vows but beyond this are practically the same as a pre-nuptial agreement. They instead offer a practical solution to address any financial concerns during marriage. Post-nuptial will be given similar weight by the courts and assessed on a basis of fairness as discussed below.

Are Pre-Nuptial agreements legally binding?

Currently pre-nuptial agreements are not strictly legally binding and it will be a matter for the court to decide how much weight to give them. However, landmark cases such as Radmacher v Granatino [2010] UKSC 42 have shown that the courts should give effect to a pre-nuptial agreement provided they are entered by each party with a full appreciation of its implications and the agreement is fair. The court will decide fairness on a case-by-case basis but at a minimum the nuptial agreement will be entered into voluntarily by both parties, with full disclosure of their financial assets and liabilities with both parties having had independent legal advice.

What can I put in the nuptial agreement?

The content of the pre-nuptial agreement is down to the parties often it will be a case of writing a list of your assets and agreeing what to do with each of them. The subject matter will be similar to that considered for any financial separation which would consider properties held solely or jointly, income, pension pots and savings amongst others.

There are some issues that should not go into a nuptial agreement and the court will not consider this will include matters relating to child custody or child support, personal or lifestyle matters or any other terms that are unfair. It is best to seek advice on the drafting of any nuptial agreements.

Will nuptial agreements become legally binding?

Whether nuptial agreements should be binding is a point of contention and has been raised to the government’s attention with no clear response. In 2014 the law commission put suggestions for reform to introduce ‘qualifying nuptial agreements’ that would be legally binding. The government did not consider this to be a pressing issue but the matter has recently gained traction again. In 2021-2022 private members bills were discussed to implement legally binding nuptial agreements but they have not yet found footing to make it through the passage of parliament. The law commission aims to publish a report later this year, September 2024, again discussing Matrimonial Property Needs and Agreements. This will likely spark further debate for legally binding nuptial agreements however the matter does not appear to be a priority for the government at this time.

If you and your partner are considering a nuptial agreement it is important you seek the advice of a professional to ensure you reach a fair agreement that will help safeguard your futures.