However, once the wedding is over, it is not unusual for couples to come and see us to ask if it is still possible to enter into a prenup agreement.
Prenup agreement, by their very definition, can only be entered into before marriage. For those who are already married and want to enter into a prenup agreement about what should happen to their assets if they were to divorce in the future, a post-nuptial agreement may be a suitable alternative.
A post-nuptial agreement is like a prenup agreement, in that it is an agreement about what would happen to each spouse’s assets if they were to divorce.
The key difference is that a post-nuptial agreement is entered into after a couple has been married, whereas a prenup agreement is entered into before marriage.
Just like prenup agreements, post-nuptial agreements are not legally binding in England and Wales.
Independent legal advice
Both you and your spouse should receive independent legal advice before you sign any agreement. Without this, your spouse could, for example, argue that they didn’t fully understand the implications of what they were signing and that a court should therefore not enforce the agreement.
No undue influence
Post-nuptial agreements must be signed voluntarily. If there was any undue pressure from one party, a court may not enforce the agreement.
Full financial disclosure
If you and your spouse do not fully disclose your finances to each other, less weight could be given to your post-nuptial agreement should you ever divorce.
Post-nuptial agreements should be fair
If a judge thinks that enforcing your post-nuptial agreement would be unfair, they may decide not to do so.
Provisions for change of circumstances
Including provisions for review should your circumstances change by, for example, having children, is also a good idea if you want to ensure (as best you can) that your post-nuptial agreement would be enforced in the future.
Even though these prenup agreements are not legally binding in England and Wales at the moment, entering into them correctly can help to give your agreement the best chance of being enforced by a judge in the future, should you ever need it to be.
Although prenup and post-nuptial agreements can appear to be unromantic, entering into one can help to make the divorce process less time-consuming and stressful if you were ever to separate in the future.
Prenup agreements, commonly known as “pre-nups”, enable couples who are entering into a marriage or civil partnership to state how they would like to divide up their assets should their relationship ever break down.
This can be particularly useful for high net worth individuals who bring a large amount of wealth and assets into a marriage and would like to protect these should they ever divorce their spouse. prenup agreements can also be used to protect things such as family heirlooms.
In 2010, the Supreme court found that a prenup agreement between a German Heiress, who sought to protect her £106m wealth, and her husband was indeed enforceable.
This was a landmark ruling in Britain, as it now seemed that prenup agreements would be taken into account when courts were deciding on how to split finances in divorce proceedings.
However, earlier this year, the Family Justice Council released a guide for divorcing couples which stated that for most people, prenup agreements would not be ‘relevant’ on divorce, because courts would look first at what was fair, before taking into account any prenup agreement.
They implied that prenup agreements would generally only be relevant in cases where, after the assets had been divided fairly in order to meet the needs of both parties and any children, there was money left over. This surplus could then be potentially protected by a prenup agreement.
The guide went on to say that the exception to this was when: “an individual might want to have a prenup agreement to say that a specific item of property should stay with them in the event of divorce – an agreement of that type might be respected, provided that the court did not have to use that asset in order to meet the other spouse’s needs.”
If the courts were to follow this guidance in the future, it seems that they would only take prenup nuptial agreements into account that were made by wealthy individuals.
It’s important to make sure that you and your partner get independent legal advice before entering into a prenup agreement. Not only must the agreement be drawn up to make sure it follows UK contract law, but you both must also fully understand what you are entering into.
It’s also very important that you both enter into the agreement voluntarily, with absolutely no pressure to sign. You should also plan and discuss your prenup agreement well ahead of your wedding date so it is obvious to the courts that neither of you rushed into it.
Bearing in mind what the courts may see as fair when discussing the terms of your prenup agreement could also help, as well as full financial disclosure between you and your future spouse.
For the rich and famous, prenup agreements have become as much a part of the modern-day marriage process as the free-flowing champagne or the cutting of the cake. Before tying the knot late last month, Robert Herjavec – worth an estimated $100 million – and his former partner from Dancing With The Stars, Kym Johnson, reportedly signed a prenup agreement.
But before signing on the dotted line, we’ve come up with a few things that you need to know:
Signing up to a prenup agreement shouldn’t be something you rush into. As a rule of thumb, you should go to see your solicitor to discuss your prenup agreement at least six weeks before you get married. Signing a prenup agreement without enough time to consider its implications and get independent legal advice could mean that, if you do get divorced, a judge may not enforce your prenup agreement. Which brings us to our next point…
Both you and your future spouse must get independent legal advice from two separate solicitors about your prenup agreement. Should you divorce, this independent legal advice reassures the judge that you both fully understood what you were signing.
If you’re a high net worth individual bringing a large amount of wealth or assets into your marriage, like Robert Herjavec, it’s a good idea to get legal advice to decide whether a prenup agreement is suitable for your situation. If the worst happens and you and your spouse do decide to get a divorce further down the line, having a prenup agreement can make a difference to your settlement. If, for example, you have assets that are of particular importance to you, you could consider adding these into the prenup agreement stating that they should remain yours, should you divorce.
A prenup agreement can include provisions to help ensure that your children from a previous relationship have a ‘pot’ of money should there ever be a divorce settlement with your future spouse.
If your prenup agreement doesn’t offer some element of future flexibility, you could find that it’s unenforceable. A clause put in specifying the agreement would be reviewed if there’s a change in circumstances – for example having children – makes if more likely to stand up in court.
It’s worth remembering, however, that the decision of whether or not to enforce your prenup agreement comes down to the courts during your divorce settlement. Following these steps ensures that you are going some way to make sure that your prenup agreement stands more chance of being enforced, should you ever need it.
For more information on this subject please visit our Legal Library.
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