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Pre-Nuptial Agreements

Pre-nuptial agreements haven’t always been upheld by courts but changes to the law and court decisions are making them more attractive.

A pre-nuptial agreement is a legal agreement made between two individuals before their marriage has taken place. The agreement usually sets out how their assets will be divided if they later separate or divorce.

The agreements can also set out what is currently happening with finances and who is funding what and how that will change during the marriage.

It is also possible to have a post nuptial or post civil partnership agreements which are legal agreements between people who are already married or in a civil partnership which will deal with the same matters that a pre nuptial will deal with. Similarly pre-civil partnership agreements can be entered into to achieve the same objective.

These agreements haven’t always been upheld by courts but changes to the law and court decisions are making them more attractive as a way of preserving or protecting wealth in the event of divorce or relationship breakdown..

However there are a number of qualifying conditions that have to be meet and the agreements ultimately can always be looked at by a Court to consider the issue of fairness. It is therefore critical that advice is sought to ensure that the agreement is as legally sound as is possible.

It is important that these agreements sets out which party owns or will own certain assets on a future breakdown of the marriage. It should set out assets owned before the marriage and inherited assets and in the event of it being a post nuptial or civil partnership agreement it should set out gifts received by one party during the marriage or civil partnership

If desired they can also deal with who earns what and how those are to be treated and also any interest in trusts that parties have to for example confirm their existence and acknowledge one party to the other that they are entirely separate from any matrimonial or joint property.

Nuptial agreements may also deal with income, such as treatment of earnings and future earnings and interests under trusts.

It would be unusual for the agreements to deal with financial provision for future children although they sometimes deal with financial provision for existing children.

Whenever there are significant changes for example the birth of a child then the agreements should be reviewed.

When our team drafts bespoke Nuptial agreements they seek to give ensure that your assets ( such as inherited wealth or pre marital property) are protected from a later financial claim.

Providing clarity and certainty and protecting particular categories of assets are significant advantages of nuptial agreements.

Do Pre-Nuptial agreements have the same legal status?

We are often asked are nuptial agreements binding? The short answer is they are not and the parties can’t override the court’s broad discretion to decide on how to redistribute their assets and income on an application for financial remedy. However the courts do have to give appropriate weight to such an agreement what weight is given depends on the circumstances of each case.

The current guidance from the case of Radmacher v Granatino decided in 2010 is 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 the agreement.”

Case law then needs to be considered as to when it is fair to hold the parties to the agreement. Contact our specialist department for a discussion of these matters and their view on how this would apply to your particular circumstances. For this reason it is vital that the prenuptial agreement meets all of the necessary criteria to ensure that it is considered fair to give effect to it.

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