Family Solicitors

Pre-nuptial agreements are entered into before a marriage in order to lay out in clear terms the financial settlement in the event of a future divorce or separation and are designed to help protect the financially weaker of the parties. Post-nuptial agreements are entered into after the marriage to ensure that one party did not enter into the marriage only if the agreement was in place. Following three cases in particular, in 2008 and 2009 and changing attitudes to marriage in society, pre and post-nuptial agreements are now being seriously taken into account by UK courts.

Because UK courts have wide powers of discretion they are able to take account of a vast range of factors that are not necessarily enshrined in law, such as these types of agreements.

Pre-nuptial agreements

These can carry great weight in the courts, although they cannot completely exclude any interference by the family court. When drawing up an effective pre-nuptial agreement, both parties should consult specialist family and childcare solicitors, such as Duncan Lewis, for expert advice. There should be complete financial disclosure by both parties and a reasonable level of financial provision allowed for.

These criteria, however, are subject to the discretion of the court. In a famous 2009 case, the poorer party was able to show that he had not taken proper legal advice when the contract was drawn up, that the disclosure had not been honest and that adequate financial provision had not been put in place; despite this, the agreement was largely upheld by the court.

Another layer of protection can come by linking a pre-nuptial agreement with one or more trusts, which are created when the agreement is made. The trusts’ existence would then be disclosed when the negations are being conducted for the agreement. In this connection, the legal jurisdiction for locating the trust should be chosen with care; dynastic trusts are usually the best to go for.

Pre-nuptial agreements are mostly beneficial when one or both parties to the marriage are wealthy or have relatively high incomes. They are also a good option if one of the parties, for example, is expecting to come into an inheritance at some point in the future. A shorter, cheaper agreement can also be useful for people in less financially secure circumstances who wish to arrange issues of principle, such as shared childcare arrangements.

Post-nuptial agreements

These can be made at any point after the marriage and do not necessarily imply that the relationship is in difficulty. Such an agreement employs the selfsame concepts as a pre-nuptial marriage. The restrictions too remain the same, such as that there is no duress involved, that independent legal advice has been sought, full financial disclosure provided, a reasonable level of financial provision has been made for any children and so on. Family courts still have the power to vary the provisions made in a post-nuptial as in a pre-nuptial agreement, so there is never an absolute guarantee of a particular outcome. Their advantage is that they can nevertheless, carry significant persuasive value in court.