15 September, 2023
September marks the end of peak wedding season. As couples plan their wedding or civil partnership, they may want to consider a nuptial agreement. This does not mean that they are planning to break up, but in certain circumstances, this aspect of relationship planning can be prudent.
A pre-nuptial agreement is a legal agreement made between two individuals before their marriage has taken place. The agreement usually sets out how the couple wish their assets to be divided between them if they later separate or divorce. Some pre-nuptial agreements also detail how the couple currently arrange their finances and how they will arrange their finances during the marriage. A pre-nuptial agreement should be finalised at least 1 month before the wedding.
A post-nuptial agreement is a legal agreement made between individuals who are already married. The agreement usually sets out how the couple wish their assets to be divided between them if they later separate or divorce. Some post-nuptial agreements also detail how the couple currently arrange their finances and how this will continue or change during the marriage.
Commonly, a nuptial agreement sets out which party owns or will own certain assets on a future breakdown of the marriage. The agreement usually defines "matrimonial property" and "non-matrimonial property" or "joint property" and "separate property".
Matrimonial property (or joint property) usually includes assets acquired during the marriage and assets held in joint names, such as the matrimonial home and joint bank accounts.
Non-matrimonial property (or separate property) usually includes:
Nuptial agreements may also deal with income, such as treatment of earnings and future earnings and interests under trusts.
Nuptial agreements sometimes deal with financial provision for existing children, but do not usually attempt to deal with financial provision for any future children. Significant changes in circumstances during the marriage, including the birth of children, are usually dealt with by review of the terms of the agreement; often a review clause is inserted into the nuptial agreement setting out when a review of the agreement should take place.
Nuptial agreements do not usually include non-financial arrangements relating to children.
Essentially the objectives of pre-nuptial agreements and post-nuptial agreements are the same:
To limit scope for uncertain, emotionally draining and financially costly Court proceedings in the event of the future breakdown of the marriage.
Providing clarity and certainty and protecting particular categories of assets are significant advantages of nuptial agreements.
Before the Supreme Court decision in Radmacher v Granatino  UKSC 42, it was thought that post-nuptial agreements were more likely to be upheld by the Court. However, the Supreme Court has now clarified that there is no difference in the legal status of pre-nuptial agreements and post-nuptial agreements.
Nuptial agreements are not binding. The parties to a nuptial agreement cannot override the Court's broad discretion to decide how to redistribute their assets and income on an application for financial remedy. When considering an application for financial remedy, the Court must, however, give appropriate weight to a nuptial agreement as a relevant circumstance of the case. It may be that a nuptial agreement should be given decisive weight. This will depend on the circumstances of the case.
If you are planning your wedding or civil partnership, and would like to discuss nuptial agreements, please contact our dedicated team to discuss.
For more information contact Karen Connor in our Family/Divorce department via email or phone on 01772 220 044. Alternatively send any question through to Forbes Solicitors via our online Contact Form.
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