The title of this blog is in itself something of a misnomer. Most people have heard of pre-nuptial agreements, or ‘pre-nups’, but fewer are aware that nuptial agreements can be prepared and signed either before (pre-) or after (post-) the wedding. Although there are some small differences, in the eyes of the law, both pre- and post-nuptial agreements are treated in the same way.
What are nuptial agreements?
Nuptial agreements are legal contracts entered into by two parties who intend to be, or already are, married. They include terms setting out what the spouses have agreed should happen with their respective and joint assets and arrangements for the children (including future children) during the marriage and in the event of divorce.
Often, one spouse seeks to protect, or ‘ringfence’ particular assets, such as (future) inheritance, or a family business, for instance.
The law on nuptial agreements
The fundamental principle to understand regarding nuptial agreements is that their terms are not automatically legally binding; there is no statute (law passed by Parliament) formally recognising nuptial agreements. Even if this changes in the future, it is extremely likely that there will be no absolute guarantee that any nuptial agreement will be upheld. Ultimately, a court will not endorse an agreement that leaves one party unable to meet their needs or the needs of any children.
However, there has been significant case law (Judgments in court proceedings) which makes clear that, although not automatically binding, if certain formalities are observed, the court should give significant weight to the terms of a nuptial agreement. The leading case which has developed the law in this area is the decision of the Supreme Court in Radmacher v Granatino in October 2010.
Radmacher v Granatino confirms that a court should uphold the terms of a nuptial agreement freely entered into by each spouse with a full appreciation of its implications unless it would be unfair to do so, or one spouse’s needs or the needs of any children would not be met. In other words, parties to a nuptial agreement should assume that if they are both legally represented, engage in a process of financial disclosure and thus understand the proposed terms, the terms of their nuptial agreement will be given effect.
Qualifying nuptial agreements
The Law Commission produced a report in 2014 recommending reform enshrining nuptial agreements in statute. The report includes a list of criteria for nuptial agreements which, if satisfied, the Law Commission propose should qualify a nuptial agreement to be legally binding and which they recommend any future legislature should contain. Agreements drafted to these standards are known as ‘qualifying nuptial agreements’.
The criteria are influenced by the factors set out by the Supreme Court in Radmacher v Granatino, but are more prescriptive: any agreement should be contractually valid and executed as a deed, both parties must have engaged in a process of disclosure and received legal advice and the needs of any children and both parties must be met.
How can Porter Dodson help?
The members of our family team can offer specialist advice about the proposed terms of nuptial agreements, including how to maximise the chances that any agreement will be upheld, and can prepare draft agreements.
Our team also includes qualified collaborative practitioners, who can assist you to agree the terms of a nuptial agreement with your spouse, which is often a quicker and more cost-effective process. Collaborative law is a process within which you and your fiancé(e) or spouse are both represented by collaboratively trained lawyers and meet together with the goal of reaching agreement together and so that everyone can hear the legal advice given by both lawyers.
Read our previous article here: A smarter way to settle: how the collaborative process puts control back in your hands
Get in touch
