Those planning to get married can enter into an agreement which sets out what they would like to happen financially if their marriage were to end. This is called a prenuptial agreement or ‘prenup’. A postnuptial agreement is a similar contract but entered into after marriage.
A prenuptial agreement is not legally binding and the court can always make whatever order it deems to be fair, ignoring the agreement if it so chooses. That said, in recent years the courts have shown that subject to certain safeguards, they are likely to take into account the terms of a properly negotiated prenuptial agreement which satisfies the following conditions:
- The terms of the agreement must be fair and meet the needs of both parties and their children.
- Ideally, the agreement should be signed at least one month before the wedding.
- Each party should receive independent legal advice.
- There must be no duress or undue pressure.
- Each party must provide full disclosure of all their assets, liabilities and income.
A prenuptial agreement is a bespoke document drafted to suit your particular circumstances and will usually include reference to the following:
- The family home
- Property brought into the marriage
- Property inherited during the course of the marriage
- Joint and sole savings
- Spousal and child maintenance
- Events that might lead to a review of the terms of the agreement
In any financial application brought before the court, the needs of the dependent children are always the first consideration and no prenuptial agreement can change that. For this reason, it is usual for the terms of a prenuptial agreement to include a review clause which would become effective if and when you have children. The children’s needs can then be considered and any necessary changes made.
The need for a prenuptial agreement is often led by one party (or their family) who wish to protect significant assets they are bringing into the marriage or that might be inherited during the marriage. In the months leading up to your wedding, the issue of whether you should have a prenuptial agreement can be a delicate issue to raise. Ultimately, the safeguard will always be that the court can ignore any agreement that it deems to be unfair.
Postnuptial agreements are very similar to prenuptial agreements, the only material difference being that ‘postnups’ are signed after the parties have married.
Please note, website content cannot be regarded as legal advice. If you have any doubt as to your legal position, Browns Family Law will be happy to advise.