Nuptial agreements are a bit like Marmite; they are either viewed as completely unromantic and a negative way to start a marriage or the polar opposite.
Sometimes they are seen as a sign of a marriage for love rather than money. Despite the mixed opinions on these types of agreements, they are a very important and useful document to have should a marriage breakdown.
What is a pre-nuptial agreement?
Pre-nuptial agreements are usually prepared to protect assets that one or both parties have before marriage. They are usually drafted to protect these assets as well as what provision might be made for both parties in the event of a separation.
There is a common misconception that prenups aren’t worth the paper they’re written on, which hasn’t been the case now for some time. All nuptial agreements (pre or post) are treated the same, provided they have been entered into correctly, although they are not strictly binding upon the Courts.
What do I need for there to be a valid nuptial agreement?
- It must have been entered into freely and voluntarily by the parties (i.e. no duress)
- It needs to record the circumstances leading to its creation, including all the financial circumstances of the parties
- The parties must have taken independent legal advice upon it.
- Have been entered into at least 28 days before marriage
If the above are present and the agreement would be fair in the ‘prevailing circumstances’ i.e., at the point of separation, the parties will be held to their agreement.
‘Fairness’ is relatively subjective and will not mean the same thing in two cases with very different facts. Nuptial agreements will always be subject to the court’s discretionary exercise under section 25 of the Matrimonial Causes Act and these factors, along with the components of fairness established in leading case law of needs, compensation, and sharing, will ultimately enable the court to decide as to whether a nuptial agreement should be upheld.
In the vast majority of cases, needs will be a determining factor. If a nuptial agreement fails to meet both parties’ needs in the event of a separation, it is unlikely that it will be upheld. The more detail that is contained in the nuptial agreement as to provision for the spouses post-separation, the better.
The agreement itself should be properly prepared and the process of drafting and finalising such an agreement will typically be a long one. The document will also be lengthy as it needs to contain all the circumstances leading to its creation and, preferably, details of how the agreement will meet needs in the future. Nuptial agreements should not be rushed and both parties must have their legal advice, and preferably financial advice, before entering into such an agreement. A certificate confirming legal advice has been taken should be appended to the agreement.
The parties’ disclosure obligations are not as onerous as they would be in the event of a divorce, but there is still a requirement for the parties to provide their financial disclosure. The onus is however on the other party to ask if there are assets or streams of income which they do not think have been properly disclosed.
Nuptial agreements, whether they are prepared pre or post marriage should include provision for review of the terms, for example, if children are born or after a certain period of time to ensure that the terms initially agreed to stand the test of time and remain fair. If they do not, then the agreement can be amended.
How can Tozers help?
To find out more about nuptial agreements or for further support, please contact our dedicated Family team.
