One of the issues I get asked most about at social functions has to be pre-nuptial agreements. There is a fascination about how and why couples decide to enter into an agreement, and there often follows a debate about why you would want one. More interestingly, how on earth do you broach the subject with your loved one without causing offence or even a complete end to the marriage before it even begins. No-one ever seems to mention post-nuptial agreements or why and when they may need one?
It often comes as a surprise to clients to be told that a pre-nuptial agreement should be signed at least 28 days before the wedding date if not some months before. Taking into account the time it takes to negotiate an agreement and undertake all the legal formalities advise should, in fact, be taken several months in advance. If you instruct a family lawyer too late before the wedding date there may not be time for a pre-nuptial agreement to be signed.
This is where the post-nuptial agreement comes to the rescue!
A post-nuptial agreement is a written agreement made by spouses after a marriage or civil partnership. Just like a pre-nuptial agreement it can be used to decide and plan what will happen to the parties’ assets and property in the event of divorce or separation.
Family lawyers will often advise a party to consider a post-nuptial agreement when a client has left it too late before the wedding date to prepare a pre-nuptial agreement. By advising the client to enter into a post-nuptial agreement this allows the couple time to discuss their financial requirements, give full disclosure of their assets to each other and take independent legal advice before entering into a final agreement to ensure the best chance of the agreement being upheld.
As the law stands in England and Wales, pre-nuptial and post-nuptial agreements are not legally binding and cannot trump the jurisdiction of the Court, but following the case of Radmacher and Granantino in 2010 and the Law Commission report of 27/2/14, the Court is likely to give weight to a pre or post-nuptial agreement if the proper safeguards have been put in place.
In essence, the Court shall give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances would not be fair to hold the parties to the agreement.
I accept that whilst planning for a wedding or after the honeymoon is over, thoughts of a pre or postnuptial agreement may not seem the most romantic way to start married life. However, if you speak to a party who has been through a difficult, acrimonious and sometimes expensive divorce, it is probably one of the first things they would want on their wedding list if they were ever to consider remarriage.
So whether you are thinking of setting a date or even if the ceremony is over, it is not too late to think about your finances and enter into a nuptial agreement and start married life in the knowledge that your finances at least are agreed. For more information about which financial agreement/order best suit your needs, see our blog, Cohabiting or Marriage – which financial agreement/order applies?