Pre- and Post-Nuptial Agreements
Increasingly, PNAs are receiving respect and recognition in our courts and case after case has recognised their importance.
PNAs are not final and binding as they stand, in that courts retain overall jurisdiction to consider all the circumstances and to decide what is “fair”. However, if they are well drafted and full advice has been given to both parties, they have been described as the “magnetic factor” by the courts and given more weight than the s.25 Matrimonial Causes Act 1973 factors.
If you are thinking of marrying, and especially if it is your second marriage, you may want to consider entering into a Pre-Nuptial Agreement with your spouse. Indeed, even if you are already married these documents are useful by way of Post-Nuptial Agreements, to verify arrangements between you.
Their increasing enforceability was summarised by Lord Thorpe, who said:
“Due respect for adult autonomy suggests that, subject to proper safeguards, a carefully fashioned contract should be available as an alternative to the stress anxiety and expense of litigation.”
The key advantages of these documents are viewed as follows:
- Protection of assets: You can protect certain assets you may wish to ring-fence as “non-marital” assets, such as inherited property, family heirlooms, or property acquired before the marriage. If the pre-nuptial agreement ring-fences such property, the court is less likely to award a share of that property to the other party on divorce.
- Protection of family members: If either of you have children and/or assets from a previous relationship, a PNA can be used to try to protect the financial interests of the children by ensuring certain assets are ring-fenced for them in the pre-nuptial agreement.
- Certainty: You can both agree at the outset of your marriage how your finances are to be divided if you later separate or divorce. This could save you the uncertainty, time and stress of litigating about your finances if you do later separate. It can also save significant costs involved regarding finances in any such proceedings.
- Transparency: You should each provide financial disclosure of your assets and income in the PNA, giving openness and honesty from the outset and helping you organise your finances during the marriage.
There are certain key points to bear in mind when preparing PNAs, as follows:
- Both parties must have independent legal advice;
- Full financial disclosure must be given by both parties;
- In relation to Pre-Nuptial Agreements, to have real effect the agreement must be signed no less than 21 days before the wedding;
- The agreement must not be signed under any pressure, duress or other such situation which might otherwise cause a contract to fail;
- Parties must “understand the consequences of the agreement”. They must be entered into “willingly and knowingly”.
- The PNA must be seen by the court to cover “needs” of both parties. (If it does not, it would not be upheld by the court.)
These agreements are very subjective and the question of whether or not they will bind parties will depend on the circumstances of each case. The court will consider not only how the deed was entered into and circumstances surrounding it then, but what the circumstances are at the time they are adjudicating it.
Circumstances are bound to change from time to time and the agreement must allow for change. It is strongly advisable to review them formally from time to time and update financial disclosure on each review.
Post Nuptial Agreements:
Courts have commented that these agreements tend to be made under less pressured circumstances than Pre-Nuptial Agreements, and therefore should carry more weight.
At Morrisons, we advise our clients to affirm any Pre-Nuptial Agreement with a Post Nuptial Agreement some time after the wedding, by way of initial review. It might well be appropriate to update a few things at that time, eg, if finances have changed, etc.
Updates of this nature have been held by the courts to show genuine intent to be bound by the agreement and are therefore very helpful in giving strength and certainty to the agreement.
Possible Forthcoming changes:
In early 2014 the Law Commission released a report recommending the introduction of laws whereby pre- and post- nuptial agreements would be known as “Qualifying Nuptial Agreements”. The main change proposed is to increase from 21 to 28 days the requirement of signing the agreement prior to the wedding, and to make them determinative of finances on divorce, provided they are “fair”.