Family & Matrimonial | Nuptial Agreements
In England and Wales, pre-nuptial and post-nuptial agreements were for a long time banned based on public policy grounds. It was felt that if parties were making a lifetime commitment to each other, why should they need an agreement dealing with separation?
Times and social trends have moved on. Pre-nuptial agreements (made prior to marriage) and Post-nuptial agreements (made during the marriage) are becoming much more common place and, if drafted correctly, are being upheld by the Courts.
Why have a nuptial agreement?
Nuptial agreements are commonly used when one party has brought, or will bring, substantial assets into the marriage. A pre-nuptial agreement can be used in certain circumstances to ‘ring fence’ such assets so that the other party does not share it.
However, nuptial agreements are not just for the rich and famous. They take away the uncertainty created by the court’s wide discretion when dealing with parties’ finances, which can lead to odd results which neither party anticipated. By having a nuptial agreement, the parties can reach an agreement whilst still amicable and, in the event of a divorce, provide a road-map leading to a cleaner separation.
Are nuptial agreements binding?
The court still has to exercise its discretion and consider whether the financial agreement is fair but, generally speaking, the courts will give decisive weight to the nuptial agreement as long as certain condition are met. However, a nuptial agreement giving one party everything and leaving the other on the street or not making provision for children is unlikely to be upheld.
The parties must enter into the agreement freely and with a full understanding of what they are agreeing to (and what they would be giving up compared with what the court may order). Accordingly it is important that both parties obtain separate independent legal advice at an early stage. Do not wait until shortly before the wedding, as there could be an argument that a party was forced to sign to ensure the marriage celebrations did not fall through.