What is a post-nuptial agreement and why do people enter it? Find out more in this ebriefing.
A prenuptial agreement, or prenup as it is more commonly known, is entered into before marriage detailing how assets will be divided if the marriage breaks down.
When planning your wedding, it may seem unromantic or pessimistic to think about what should happen to your assets if the marriage ended. Whilst you enter a marriage expecting it to last forever, it nevertheless makes financial sense to consider what would happen if the marriage were to end. This is particularly true for people entering into a second marriage or those wanting to protect assets for children from a previous relationship.
A pre-nuptial agreement is a contract that a couple enters into before marriage, which sets out their rights to property, assets, debts and any income acquired before their relationship commenced, during the relationship or after separation or divorce, in the event that their relationship ends.
While pre-nuptial agreements are not 100% binding in a divorce court, if properly and fairly entered into, their terms can be upheld by the court, or otherwise be very influential on the court’s ultimate decision as to the division of assets between the parties.
Is a prenuptial agreement for you?
Pre-nuptial agreements are often thought to be something only very wealthy people need to consider, but in reality they may be appropriate in the following instances:
- Where there is a significant imbalance in financial positions
- Where one or both parties have been married previously and wish to preserve their first marriage settlement
- Where one or both parties have children from previous relationships and wish to ensure that their assets are preserved for the benefit of their children
- Where couples wish to remove the uncertainty of who gets what (if the marriage does not work out)
Our advice is practical, clear and we work with our clients to guide them through every step of the legal process.
Our prenuptial service
Our team of experienced family law solicitors will work with you to provide clear, practical advice and will keep legal jargon to a minimum. We specialise in advising upon and preparing pre-nuptial agreements and they will ensure they understand your circumstances, tailoring an agreement to your specific needs.
At Anthony Collins Solicitors, we know that this is a highly personal legal document which is why you can rely on us to treat the matter with sensitivity and care. When entering into the agreement there are a number of requirements, which, if followed make the agreement more likely to be upheld by the court:
- Parties should try to ensure the agreement is entered into at least a month before the wedding date. Given the legal work involved, this means beginning the process at least three months beforehand;
- Assuring that both parties are aware of each other’s financial position. Prior to entering into a pre-nuptial agreement, full financial disclosure should be exchanged;
- Both parties should receive legal advice during the process of agreeing the terms of the pre-nuptial agreement and before signing the document, to avoid suggestions of undue influence or one party claiming they did not understand what they were entering into; and
- Both parties should think carefully about the terms of the agreement – do they work for them, are they clear and unambiguous and do they take into account changes in circumstance in the future? Quite often pre-nuptial agreements have review clauses which activate after an agreed number of years of marriage or the happening of a certain event.
In circumstances where pre-nuptial agreements have not been agreed prior to marriage, our experienced team can provide advice on post-nuptial agreements. Post nuptial agreements are very similar to pre-nuptial agreements – the main difference being that they are entered into once you are married, which can make them harder to contest as it removes suggestions of undue influence.
At Anthony Collins Solicitors, our experienced family law team can also advise on living together agreements. This type of agreement is similar to a pre-nuptial agreement, but is for couples who are not married but are co-habiting. As there is very little law that protects co-habiting couples, living together agreements can help clarify what happens to assets in the event of separation.
Why choose Anthony Collins Solicitors?
As one of the West Midlands most successful and respect law firms, our solicitors are passionate about delivering expert legal advice to support you in achieving a successful resolution for your issue. Our advice is practical, clear and we work with our clients to guide them through every step of the legal process. Our experienced team has the knowledge, experience and sensitivity to assist individuals and their families through periods of uncertainty and difficulty.
Get in touch
If you would like further information about pre-nuptial, post-nuptial or living together agreements or how our family law team can help you, please get in touch.
Are courts obliged to enforce prenuptial agreements?
Prenuptial agreements are an effective dispute avoidance tool that is encouraged by the Family Court, particularly at a time where the latest statistics tell us that 36% of all parties in private law family cases are unrepresented.
Despite allegations of aged old paternalism, courts are increasingly turning to empowerment of the litigants to reach an agreement themselves, reducing the need for costly and time-consuming final hearings. In my experience, parties are unlikely to reach an agreement without prompting from their solicitors.
Unlike in the United States of America, prenuptial agreements are not fully binding. The court, however, should give effect to one if it is freely entered into by both parties and they are fully appreciating of its implications, unless in the circumstances prevailing it wouldn’t be fair to hold them to it. Essentially, if both parties take legal advice and make full disclosure, and there are no procedural irregularities, a court will endorse the agreement. Both parties should take legal advice well before the marriage ceremony to avoid legal issues, such as the perception of undue influence and the practical realities of actually getting it all done thoroughly and correctly.
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