The court uses a three stage test when considering whether to uphold the terms of a pre-nuptial or post-nuptial agreement:
1. The agreement must be freely entered into;
2. Both parties must have a full understanding of the terms of the agreement;
3. It must be fair to hold the parties to this agreement.
If you are considering entering into a pre-nuptial or post-nuptial agreement the following may help with the decision making.
Advantages
1. You will make it clear, and agree at the outset of your marriage, as to whether a particular asset is yours alone, or whether you are happy for it to be shared on any future divorce. This provides certainty and avoids lengthy and costly litigation in the future, which in turn saves you in legal fees.
2. You will provide each other with disclosure of your assets before any agreement is reached, allowing you to agree to protect any assets, such as gifts or property received before the marriage. You can also protect your assets from any of your partner’s debts now or in the future.
3. Entering into an agreement should lead to fewer arguments about your finances and will help you communicate about financial matters during the marriage.
4. The agreement will protect any assets ring-fenced for your children and will set out what will happen to your assets on your death, ensuring that your children are taken care of.
5. If you are concerned that your partner wishes to marry you for your money, the agreement should help to put your mind at rest.
Disadvantages
1. The agreements are not legally binding, however, following the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, the court will uphold a pre-nuptial agreement and a post-nuptial agreement if it satisfies the three stage test above.
2. The agreement cannot anticipate what will happen in the future. If there is a significant change of circumstances, it is unlikely that the agreement will be upheld by the family court. In an attempt to ensure that the agreement is upheld by the court, the document should be reviewed on a significant change of circumstances, resulting in further legal fees and potential upset, and puts a strain on your relationship.
3. The court is unlikely to uphold an agreement that is no longer in the best interests of any children of the marriage. Any agreement reached will be dependent on the circumstances of the children at the time of the divorce.
What is the difference between a Pre-nuptial and a Post-nuptial agreement?
A pre-nuptial agreement is entered into before the marriage and the post-nuptial agreement is entered into after the marriage. The same rules apply to both documents.
Should I be offended by a pre-nuptial or post-nuptial agreement?
It might come as a bit of a shock but try not to be offended. Think of it as a practical step to be open about your finances and how you will communicate this in your marriage. Always take legal advice from a family lawyer to ensure that the agreement is fair and in your best interests.
What if they will not marry me without the pre-nuptial agreement?
Do not feel forced into signing or entering into an agreement without taking legal advice first as you could end up dismissing some of your legal rights. If the other party insists on the agreement, inform them that you will need to speak to a family solicitor before signing and they must allow you the time to do so. Once you have taken advice you will then be in a position to decide whether entering into the agreement is right for you.
If you would like to know more about pre-nuptial and post-nuptial agreements, or if you are considering entering into one
Priya Gill Liaudet is a specialist Divorce and Family Lawyer who leads with empathy and deals with family matters constructively
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