Pre-nuptial agreements (‘pre-nups’) and post-nuptial agreements (‘post-nups’) are increasingly common within England and Wales.
The relevance of such agreements has been seen in the recent series of Love is Blind UK, where a husband-to-be asked his -wife-to-be to enter into a pre-nuptial agreement with him – it was not well received.
There remains a lot of negative connotations to such agreements and so this article aims to clarify some common misconceptions surrounding pre-nups and post-nups within England and Wales.
They are legally binding in England and Wales?
False.
They are not legally binding. Judges within England and Wales will exercise their judicial discretion when determining whether a pre-nup or post-nup should be enforced. The leading case of Radmacher v Granatino states that a pre-nup or post-nup should be upheld unless it would be unfair to a party to do so.
Courts will have particular consideration to the following factors:
- There has been full financial disclosure by both parties prior to signing the pre-nup or post-nup.
- Each party has had independent legal advice before singing the pre-nup or post-nup to understand the implications of signing the pre-nup or post-nup.
- The couples enter into the agreement freely without any undue pressure or influence.
- The pre-nup was entered in advance to, and ideally at least 28 days before, the wedding.
Pre-nups and post-nups need to be signed by both parties?
True.
The pre-nup or post-nup needs to be contractually valid for it to be qualifying, an example of this is that the agreement must be signed by both parties to it.
A pre-nup or post-nup cannot be reviewed?
False.
Pre-nups and post-nups should be kept under regular review, whether informally or formally by seeking legal advice.
The sooner you enter into a pre-nup, the better
True.
Pre-nups should ideally be signed at least 28 days before the wedding to have the greatest chance of being upheld.
You cannot discuss a pre-nup or post-nup with your partner
False.
A pre-nup and post-nup is between both parties and, as such, open and honest communication between the parties is essential.
Both parties should obtain legal advice
True.
Both parties should seek independent legal advice on the pre-nup or post-nup before signing.
A pre-nup or post-nup can determine what happens to my assets upon death
False.
This is what a Will is for. It is an entirely different document. For advice relating to Wills, Trusts and Estate Planning you can contact a member of our Private Client team.
You can have a pre-nup and a post-nup
True.
You can enter into both. Pre-nups and post-nups are not treated differently to each other. It is important that it is clear in the newer agreement that it is to override the terms of the prior agreement.
You only need to consider a pre-nup or post-nup if you are rich
False.
Pre-nups and post-nups are for everyone. For example, they can be used to protect pre-matrimonial wealth, future inheritance, business and property. They protect both parties to a marriage, not just the wealthier party.
