Are Pre Nups and Post Nups Legally Binding?

Amidst the excitement and romance of planning married life together it can feel very daunting to raise questions about entering into a Pre or Post Nup. This blog aims to answer some common questions relating to Pre and Post Nups for couples who are trying to decide whether they are worth having.

What is a Pre Nup?

A Pre Nup is a pre-nuptial agreement  (or pre-civil partnership/pre-registration agreement). It is an agreement entered into by a couple before marriage or civil partnership to set out their financial arrangements in the event that their relationship ends.

What is a Post Nup?

A Post Nup is a post-nuptial agreement (or post-civil partnership/pre-registration agreement). Sometimes with all the wedding/civil partnership ceremony preparations going on, couples have not left enough time (ideally at least 28 days) before their marriage before signing their Pre Nup.  In such situations, it is advisable, even where a Pre Nup has been signed less than 28 days before the marriage date, to also enter into a Post Nup soon after the marriage to set out your financial arrangements in the event that their relationship ends..

What if we are not getting married but wish to have an agreement in case our relationship ends?

If you are not planning to marry but intending to cohabit with a partner you can enter into a cohabitation agreement to record how you wish to deal with financial arrangements during your relationship and in the event of a relationship breakdown. The law regarding financial matters for unmarried couples differs substantially from that relating to marriage/civil partnership  and this is covered here What can you include in a cohabitation agreement? – Family Law Partners

Are Pre and Post Nups legally binding?

They are not automatically enforceable or legally binding in the jurisdiction of England and Wales at present. They have however been regarded by the court as persuasive and even decisive in some cases.  They may influence the outcome of a financial remedies application during a divorce. They will be one of the factors a court has to consider when assessing the terms of a divorce financial settlement.

Are they likely to be legally binding in the future?

This has been under review for over a decade and there is no certainty as to when Pre or Post Nups will become legally binding in this jurisdiction, although increasingly they are becoming a significant and decisive factor in financial remedies cases provided they meet certain criteria.

What criteria should be met for a Pre or Post Nup to be upheld?

In 2010 the case of Radmacher (formerly Granatino) v Granatino considered the weight that should be given to nuptial agreements by a court when deciding how finances should be resolved on divorce.  It was concluded in this case that:

“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 their agreement”.

The Law Commission has recommended the introduction of ‘qualifying nuptial agreements’ which would be enforceable contracts for couples to  make arrangements as to what would happen if they went through divorce or dissolution provided they met certain qualifying requirements and subject to court assessing that the arrangements were fair.  As yet this recommendation not been made law but in preparing pre-nups, you should have regard to the recommended criteria.

In light of case law and the Law Commission recommendations the criteria can be very briefly summarised as follows:

• The agreement should be entered into at least 28 days before the wedding.
• The agreement should be on a contractually valid basis (i.e. able to withstand challenges based on undue influence/duress or misrepresentation for example).
• The agreement should be entered into as a deed (a formal document where the parties signatures are witnessed by independent witnesses).
• Both parties should enter into the agreement after taking independent legal advice.
• Both parties should receive ‘material information about the other party’s financial situation’ before they enter into the agreement. .
• The agreement must be fair to both parties (an agreement which leaves one spouse in a predicament of real need whilst the other is comfortably provided for is unlikely to be upheld).
• The agreement must not prejudice the interests and needs of any relevant children. On divorce, the needs of any relevant children will always be the first consideration.

Why have a Pre or Post nup if they are not binding?

As set out above, although they cannot be guaranteed to be legally binding they are likely to be persuasive and decisive if the above criteria are met when they are entered into. A Pre or Post Nup sets out a couple’s intentions confirming their commitment as to how finances will be dealt with if their marriage ends.  They can be considered for a range of reasons such as:

• when one or both parties wish to safeguard or ringfence assets owned separately before the marriage
• to protect family trusts, inheritance, businesses or other assets
• to take into account financial commitments to children of an earlier relationship or to former partners
• for a second or subsequent marriage where there may have been previous experience of difficulty in resolving finances on divorce
• to give as much peace of mind as possible for the future and to record if and when it would be relevant to review the agreement

Will my Pre or Post Nup be legally binding in other countries?

• Pre or Post Nups state the legal jurisdiction which is applicable to the agreement on divorce/dissolution. This is usually that to which the couple have the closest ties and where the majority of their assets are situated.

Some couples have assets in more than one jurisdiction or may have plans to live abroad during their marriage.

• In such situations, it is important to take legal advice from a family law specialist in the relevant jurisdiction as well as in England and Wales. In some countries you can register your UK Pre Nup so that it will be recognised there, but often you will need to enter into a mirror agreement in the other jurisdiction which meets the legal requirements of that particular jurisdiction, seeking advice as to the status of Pre or Post Nups in that jurisdiction.

How can I be as sure as possible that our Pre or Post Nup will not be set aside in the future?

• It is likely to be upheld if meets the above qualifying criteria.
• It is common to include a clause that if one clause is found to be void, this will not invalidate the whole agreement.
• Keep the agreement under review, in particular to ensure that it continues to meet the needs of you both and any relevant children.

What if things change and we both agree to review it?

You can include a review clause saying when you may wish to review the agreement to see if any changes or a new agreement are needed.  For example:

• On the birth or adoption of a child
• Either of you experiencing a significant change in income or other financial circumstances (e.g. redundancy, inability to work through ill health etc)
• After a set number of years

If you forget to review and changes arise the agreement can state that it will remain valid as originally prepared (or you can decide that is will cease to be valid once a set number of years expires).  As it is important that there is regard to fairness on divorce so that one of you does not have significant wealth and the other is unable to meet their living expenses, if it is no longer fair to one of you (e.g. because of a deterioration in health, loss of income, redundancy etc), and was entered into some years go without being reviewed  this may mean that whilst it is taken into account as a factor in your case, additional provisions have to be made to ensure needs are met. Periodic reviews are therefore advisable to keep the agreement up to date and ensure it meets your current joint wishes.

How can we get a Pre or Post Nup prepared (or reviewed)?

A specialist family lawyer can advise you of the options available and help you work most suitable way forwards based on your circumstances. The Collaborative Process is particularly well suited to preparing or reviewing Pre and Post Nups. Some key highlights of this process include:

• A dynamic, practical and cooperative way to prepare or review a Pre or Post Nup where you both, together with your respective lawyers, meet and work together.
• It ensures that you both receive all the information you need from each other to make fully informed decisions to meet the financial disclosure criteria referred to above.
• The process can save time as there is limited correspondence and a lot can be achieved in joint meetings in a short space of time.
• Enables you each to hear the other’s perspective and receive legal support.
• If tax, financial or other advice is needed in more complex situations before finalising terms – a multidisciplinary approach can be incorporated into the collaborative process with other specialist professionals participating as required within or alongside joint meetings.

Whichever family law process you choose to complete or review your Pre or Post Nup; this should be an amicable and stress-free as possible  to finalise the documentation to your mutual satisfaction leaving you both you free to focus on your married life together. If you would like advice in relation to a Pre or Post Nup please contact us.

Further information:

https://www.familylawpartners.co.uk/blog/designer-divorces-who-gets-the-handbags

https://www.familylawpartners.co.uk/wp-content/uploads/2022/05/Family-Law-Partners-Nuptial-Agreements.pdf

Sarah-Jane Riddell is a Senior Associate Solicitor, Collaborative Lawyer & Mediator in our Brighton Office.