Posted by familylaw on 1st February 2019
Last updated 12th February 2019

With spring on the way, many people will be thinking about marriage – and many will already be planning their spring or summer wedding.

Much has been said in the press about prenuptial agreements, and many believe incorrectly that these are only relevant to people with substantial wealth.

Should you consider a prenuptial or postnuptial agreement, when is it the right time, and what are the differences between them?

A prenuptial agreement is an agreement made by the parties before marriage takes place. A prenuptial agreement is when the parties wish to remain married but there may have been a significant change in wealth. This means that one of the couple may wish to protect their new assets – so the agreement is made after the marriage.

It is still the case that such agreements – prenuptial or postnuptial – are not legally binding in England and Wales. Guidance was given in 2010 about when an agreement will or will not be deemed to be fair, although nor rules were set. If the couple are entering into a prenuptial agreement, the Court will look at the date it was entered into and how far in advance of the wedding the agreement was signed. This is to ensure that no pressure is placed on the financially weaker party to enter into an agreement prior to the marriage.

What this means is that if you are thinking about obtaining a prenuptial agreement, it should be done well in advance of the wedding to ensure that full and frank disclosure of each other’s financial circumstances can take place and that both parties are able to seek independent legal advice.

Bear in mind that the Court is unlikely to hold the parties to any agreement if it is unfair, prejudices the position of any children or does not meet the needs of both parties. The Court will want to see that the agreement, whether prenuptial or postnuptial, was entered into freely, that both parties were aware of each other’s financial positions and that the agreement appears to be fair.

Many people may find it difficult to raise the issue of entering into these agreements, being under the impression that it isn’t romantic to already be thinking about possible separation. But, with figures currently suggesting that just under one in two marriages ends in divorce, it is certainly wise to think about these matters.

It may be useful to understand that agreements made when a couple are still in a relationship and on good terms are more likely to be fair then those that are not. Additionally, the price of a prenuptial or prenuptial agreement may lessen costs if there are subsequent divorce proceedings as litigation is less likely to be drawn out.

For those who are entering marriage for a second time, divorce rates are higher again. Couples that are marrying for a second time may have already accrued property or other assets and may wish to ensure that their children benefit from those assets as opposed to their spouse. With this in mind, it is certainly wise for couples who already have children and assets to consider entering into a prenuptial or postnuptial agreement.

What should you do if you are thinking about obtaining a prenuptial or postnuptial agreement?

Firstly, you should speak to your spouse or potential spouse about this. Whilst such conversations may be difficult, they may also save heartache in the future. You should also ensure that you give your partner plenty of time to think about the idea and be prepared to be open and honest with your own financial position.

If you are thinking of entering into a prenuptial agreement, it is important that you ensure you have enough time to obtain your financial information, instruct a lawyer to assist you in preparing the information and to ensure that your future spouse has time to consider the draft agreement and seek independent legal advice about it.

At The Family Law Company, we prepare both prenuptial and postnuptial agreements. We offer a free initial half hour appointment to discuss and questions or concerns you may have.

If you wish to have any assistance in this regard, please contact us.

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