Pre & Post Nuptial Agreements

Nobody wants to think about their marriage ending before it has begun - it may even feel counter-intuitive to do so. However, pre-nups and post-nups have an increasingly important status to protect wealth for the individual and wider family.

Pre and post-nuptial agreements are designed to settle what will happen to your assets in the event of a divorce. They can help to alleviate the emotional and financial costs of litigation for you if your relationship breaks down. Working with you and your partner’s advisor, we will help you to gain a clear understanding of your legal rights and responsibilities and assist in the negotiation and drafting of the agreement itself.

Our family law team have worked on many pre and post-nuptial cases and specialise in agreements in which one or both parties have significant wealth. We are well equipped to navigate complicated assets or financial interests relating to previous relationships, helping you to secure a pre-nuptial or post-nuptial agreement to suit your individual situation.

Our service also extends to those who have previously agreed a pre-nup agreement, and in the event of a divorce, would like to dispute the agreement on the basis that it was unfair.

We understand that bringing up the subject with your partner, or contesting the decision after the marriage can be a huge challenge. At Boodle Hatfield our experienced pre-nup solicitors have been advising wealthy individuals and their spouses on family law matters for generations – we are here to guide you through the process, ensuring a favourable and fair outcome for our clients in any situation.

Nuptial Agreements

Pre-nup agreements – A pre-marital or pre-nuptial (‘pre-nup’) agreement is a formal, written document signed by both marital parties. It outlines the individual ownership of all personal belongings – money, assets and property – and explains clearly how said belongings will be divided in the unfortunate event of divorce. Boodle Hatfield has three centuries’ worth of experience in family law and can provide professional, confidential advice to help your specific situation. We will discuss your legal options and ensure that your agreement stands the strongest chance of being upheld.

Post-nup agreements – A post-nuptial (‘post-nup’) or post civil partnership agreement is signed during a marriage and sets out how money, property and/or assets would be divided in the event of the marriage breaking down. Such agreements are not strictly legally binding, but they hold weight if a divorce subsequently occurs.

Pre-nup disputes and financial remedy – In cases where either or both parties believe they have entered into an unfair agreement, the validity of its contents may be contested. There are various reasons for a legitimate contest, including:

• Your pre-nup was not executed properly
• Your spouse pressured you into the agreement
• You were not given adequate time to consider the agreement before signing

Frequently Asked Questions

Why enter into a pre-nuptial or a post-nuptial agreement?
Pre-nups and post-nuptials can have significant weight in financial remedy proceedings for divorce. The Court’s starting point for division of the assets is 50:50 unless there are good reasons otherwise. On divorce, the Court has extensive powers to take into account all of your assets including pre-marital assets, those which are inherited, held in trust or offshore, business assets, pensions and bonuses. You may have assets, which you already own which you would like to protect, or you may envisage that your wealth will increase significantly during your marriage from earnings or inheritance. You may want to ring-fence those assets to protect them from a claim.

Are pre-nups and post-nups legally binding?
Neither a pre-nup nor a post-nup is legally binding; the Court retains its discretion as to how to split the assets in a fair manner even where the parties have entered a pre-nup or a post-nup. However, the attitude of the Court towards them has changed considerably in recent years. Provided the agreement complies with certain conditions, there would need to be unusual features for the Court to depart from the terms.

What does the Court take into account?

The best advice for those wishing to enter into a pre-nup or post-nup is:

• To have independent legal advice from a specialist family lawyer on both sides. The Court will want to know that both parties entered into the agreement with full knowledge and understanding of its terms.
• There must be full and frank disclosure of each other’s financial circumstances.
• The agreement must make suitable provision for any children.
• Any pre-nup should be signed within good time before the wedding. We recommend that it is signed no fewer than 4 weeks beforehand. Post-nups can be made at any time after your marriage.
• The Court will not uphold an agreement, which is unfair to one of the parties.

What sort of terms should the agreement include?
A typical agreement would seek to ring-fence assets acquired or inherited before the marriage or property inherited during the marriage. The bottom line for the division of assets on divorce is to meet the “needs” that you both have. “Needs” means providing appropriate accommodation, the right level of income (or capitalised income) and if appropriate suitable pension provision. This will be influenced by the standard of living enjoyed during the marriage. A pre-nup is more likely to be viewed as fair, and therefore upheld, if it ensures that both your needs and the needs of any children of the family are met appropriately.

What if you are a foreign national and/or want to leave England?
We are experienced in drafting pre-nuptial agreements where there are international elements. We may recommend having a dual agreement in another country, which would co-exist alongside an English pre-nup. We have longstanding connections with foreign lawyers who we can work with to achieve this.

How can we help?

We will help you collate and present your financial disclosure and draft the agreement. If necessary, we can help put your spouse in touch with another family law specialist so that they can obtain advice.

We are also able to advise the financially weaker party on the effect of a prenup instigated by their future spouse on their rights; whether it is to their advantage, financially or otherwise, to enter into the agreement; and whether the provisions of the agreement are fair. If appropriate we can negotiate on your behalf with the other party’s solicitor to improve the proposed terms.

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