Post & Pre Nups
More and more frequently couples in the UK are signing a post- or pre-nuptial agreement. Some of the most common reasons couples cite for doing this, are:
- It is a way to protect assets which they may have inherited
- To ensure that they retain items of sentimental value, such as jewellery
- Where there is a business to protect
- In circumstances where one party is significantly wealthier than the other
- To ensure a non-acrimonious division of assets should a separation occur
Although pre-nups are more common, the only difference between pre- and post-nuptial agreements is the timing. Pre-nups are contracts signed before a marriage. Post-nups are essentially the same type of legal agreement, but are signed after the parties have already married. There is no difference in their legal status.
What is a pre- or post-nuptial agreement?
A pre-nuptial agreement is basically a contract signed by two people before they get married. A post-nuptial agreement addresses the same issues but is formalised after the marriage has taken place. Both agreements clearly set out what property and money belong to each party before the marriage, what the intention is during the marriage, as well as what should happen to these assets should the relationship come to an end. It is a practical way of simplifying life after a relationship ends.
Are they legally binding?
Strictly speaking, pre-nuptial and post-nuptial agreements are not legally binding in the UK. This means that a court is not compelled by law to uphold them after the parties to the agreement separate, although they will always carry weight. In reality, however, provided the agreement is fair and has been entered into willingly, has been drafted with the correct considerations and witnessed, then it is very likely that a court will follow a nuptial agreement if called upon to decide on a financial settlement following divorce.
Should I consider a post- or pre-nuptial agreement?
Once you are married, you and your spouse have a different legal status to your single self. In practice, this means that any assets owned before the marriage as well as those accumulated during the marriage, can be treated the same way and divided appropriately between the two of you in the event of a divorce or separation. By contrast, a pre- or post-nuptial agreement means that you can identify specific assets that belonged to you prior to the partnership and make sure that ownership of those assets will always remain with you. This can be particularly useful for inherited assets or items you personally acquired during the marriage. The agreements can also make arrangements regarding existing or future pets and children. If you are unsure of what to do, an experienced lawyer can help you decide if an agreement is right for you at this time.
Why might parents want a nuptial agreement in place for their children?
Generally speaking, assets that have been acquired since marriage will belong to both parties and are ‘up for grabs’ at the time of divorce or separation. However, with many young couples now needing help from their parents to get on the property ladder, it may be pragmatic for their children and their respective partners to sign a nuptial agreement that covers the money provided for a property deposit. In the event of a divorce or relationship breakdown there is a chance that half of the money handed over by the parents can end up with the ex-son-in-law or ex-daughter-in-law. A good nuptial agreement drawn up by a lawyer should provide certainty for all parties.
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