For engaged and married couples wanting to define and protect their assets
Marital agreements address the rights and separation of assets in the event of a divorce
It is important to note that a prenuptial agreement and a postnuptial agreement are not legally binding in England and Wales.
When considering an application for financial remedy in a divorce, the family court must, however, give appropriate weight to a prenupital or postnupital agreement as a relevant circumstance of the case.
A prenuptial agreement is drawn up before the wedding and the postnuptial agreement is drafted after the wedding. The same rules apply to both documents.
The court uses a three part test when considering whether to uphold the terms of a prenuptial agreement:
No agreement between the parties can override the family court or prevent a family court judge from deciding on the fair and appropriate division of assets on a divorce. This means a prenuptial agreement cannot stop your spouse from applying to the court for financial provision, and any “waiver” of the right to apply to the court for financial provision in an agreement will not be effective.
In an attempt to ensure that the agreement is upheld by the court, the document should be reviewed on a significant change of circumstances. This can result in further legal fees and potential upset, placing a strain on your relationship.
The document must be contractually valid and there must be no factors present that cast doubt on the free will of the parties to the agreement, or on the level of information a party had when entering the contract.
It must be executed as a deed and contain a “relevant statement” signed by both parties confirming they understand the agreement is a qualifying nuptial agreement that will remove the court’s discretion to make financial orders on divorce except to meet financial needs.
It must not have been made within the 28 days before the wedding.
Both parties to the agreement must have received disclosure of material information about the other party’s financial situation when entering into the agreement.
Both parties must have received legal advice at the time they entered into the agreement.
A prenuptial agreement is not automatically legally binding but can be enforced if it meets the fairness test as established by the case of Radmacher v Granatino (2010).
Some examples include if it wasn't signed on time, does not meet the needs of the parties, was not regularly reviewed and if it prejudices the financial needs of the children.
Both parties benefit if the agreement is fair and both parties have entered into it freely after taking legal advice.
The child arrangements such as where the child lives following a separation and personal matters between the parties.
Flee from danger, Contact the Police, call a family lawyer or a national domestic abuse helpline
We are here to support you, and to put your mind at ease, by explaining your options to you in plain English. Contact us to arrange an informative initial consultation.
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