A marriage, as much as we all want it to last forever, sometimes it just doesn’t. More couples now are taking the practical approach of preparing for such an unfortunate event by drawing up pre-nuptial and post-nuptial agreements. The nuptial agreements provide clarity, certainty and protection to both parties in relation to their assets and finances.
A pre-nuptial agreement
A pre-nuptial agreement is a written contract signed by two individuals before their marriage has taken place. This is the most common agreement and takes into account the individual’s assets and income. For the pre-nuptial agreement to hold maximum weight in a divorce hearing, the agreement has to have been signed no later than 28 days before the wedding.
A post-nuptial agreement
A post-nuptial agreement is a legal document made between individuals who are already married. This agreement is usually considered if there is uncertainty in the relationship and the individuals involved want to protect their assets should a separation occur in the future.
Are they binding?
Pre-nuptial and Post-nuptial agreements are not technically legally binding. However, the courts have stated on numerous occasions pre and post-nuptial agreements will hold a heavy weight during a divorce hearing.
The case of Radmacher v Granatino was decided by the Supreme Court in October 2010 and is the leading case which determined the validity of pre-nuptial agreements. While deciding the weight of a pre-nuptial agreement, the Supreme Court’s main focus was in regards to the fairness of the agreement. The Supreme Court held:
The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.
(At paragraph 75.)
Fairness is assessed by applying the following three-stage test, as set out in Radmacher:
- The agreement must be freely entered into.
- The parties must have a full appreciation of the implications of the agreement.
- It must be fair to hold the parties to their agreement in the circumstances prevailing.
The court will need to consider the guidance provided by the Supreme Court in the case of Radmacher while deciding what is fair. The Supreme Court emphasised that the very existence of a nuptial agreement is capable of altering what is fair.
Couples who do not enter into a pre-nuptial agreement always have the option of drawing up a post-nuptial agreement during their marriage. This will lay out which assets will stay individual and which will be shared.
These agreements are drawn up by solicitors after full financial disclosure from both parties. It is essential that both parties are legally represented as this avoids confusion and any accusations should anything go wrong in the future.
If you require more information, email Anu.Simkhada@isonharrison.co.uk or alternatively call 0113 284 5730.