Pre-nuptial and Post-nuptial Agreements in the UK – What You Need to Know

Pre-nuptial agreements and post-nuptial agreements both attempt to protect the parties of a marriage should the relationship later break down. Such agreements can address property, maintenance and child support or custody issues. Under English law, each type of agreement is treated differently.

Pre-nuptial Agreements

English law does not formally recognise pre-nuptial agreements in the same way some other countries do. For example, in some countries, a pre-nuptial agreement will always be binding when couples divorce, but this is not the case in England.

English courts must consider a significant number of factors when deciding the distribution of matrimonial assets upon divorce. Pre-nuptial agreements are not yet considered one of those factors, however. In recent years, English courts have given pre-nuptial agreements greater weight in a number of cases and have begun to treat them as a significant consideration.

A recent Supreme Court decision in Radmacher v Granatino has reinforced this view, and the Supreme Court substantially upheld the pre-nuptial agreement the couple entered into prior to the marriage. Unfortunately, for pre-nuptial agreements to become binding in all cases, Parliament must bring new legislation to that effect.

The general view amongst lawyers is that a pre-nuptial agreement is evidence of the parties’ intents at the time they signed it, in contemplation of marriage. The best chance of a pre-nuptial agreement being upheld occurs when the following issues are taken into account within the agreement:

  • The agreement must be voluntary – neither party should feel pressured into entering into the agreement;
  • Both parties need to be separately and independently advised by a lawyer;
  • Both parties must disclose their financial assets and liabilities in a full, frank and honest manner;
  • The pre-nuptial agreement should be entered into some time before the marriage takes place – six weeks prior to the marriage as a general guideline; and
  • The agreement must be fair or it is unlikely to be upheld. The parties also should recognise that the matrimonial circumstances and the agreement are likely to change as time goes by. What is fair after a short marriage with no children is not likely to be the same as what is fair following a lengthy marriage that produces children.

The Law Commission is currently considering reforming this area of law, and a report is expected sometime in 2012.

Post-nuptial Agreements

A post-nuptial agreement is one that is entered into after marriage. English law provides that post-nuptial agreements can be varied if or when parties divorce, if they are considered to be post-nuptial settlements or maintenance agreements. This support the Court’s discretion on distributing matrimonial assets upon divorce. The parties need to be aware that any agreement they make can be varied at the Court’s discretion.

The Privy Council considered the status and effect of post-nuptial agreements in the case MacLeod v MacLeod. The Supreme Court has endorsed the decision of the Privy Council such that parties who have entered into a post-nuptial agreement should be entitled to enforce that agreement upon separation, subject to the court’s power of variation.

The recent decision of the Supreme Court in the case of Radmacher v Granatino dealt with pre-nuptial agreements, but the result makes it arguably less likely that a post-nuptial agreement will be disturbed or varied. However, it is still unclear how this may actually be applied to post-nuptial agreements in the future.

Although we cannot guarantee that a post-nuptial agreement will be upheld in its entirety due to changes in Court decisions and ever-changing personal circumstance, in order to obtain the best possible chance of an agreement being upheld, we take the following points into consideration:

  • The agreement must be voluntary – neither party should feel pressured into entering into the agreement;
  • Both parties need to be separately and independently advised by a lawyer;
  • Both parties must disclose their financial assets and liabilities in a full, frank and honest manner;
  • There should be adequate time to reflect and consider the terms that are proposed in the post-nuptial agreement, and neither party should feel pressured by time to sign the agreement;
  • The agreement must be fair or it is unlikely to be upheld. The parties also should recognise that the matrimonial circumstances and the agreement are likely to change as time goes by. What is fair after a short marriage with no children is not likely to be the same as what is fair following a lengthy marriage that produces children.

Due to the changing status of pre- and post-nuptial agreements and the need to take personal circumstances into consideration when developing such agreements, it is important that those parties considering pre-nuptial or post-nuptial agreements obtain proper legal advice and assistance in moving forward for the best possible chance of such agreements being upheld. At Prince Evans, Elizabeth Kornat is our expert legal counsel in the areas of matrimonial agreements, civil partnerships and cohabitation agreements.