Prenuptial agreement or postnuptial agreement – are they a good idea?
For many couples, the idea of entering into a prenuptial or postnuptial agreement can feel far from romantic. When you’re putting the finishing touches to your wedding plans or living in wedded bliss, the possibility of divorce is, understandably, not something you want to think about.
Are prenuptial agreements something we should all be talking more about? Or do they ruin the romance? We take a closer look…
What are prenuptial and postnuptial agreements?
A prenuptial agreement, sometimes called a ‘prenup’, is a document detailing what should happen to a couple’s assets should their relationship break down in the future. A prenuptial agreement is entered into before the couple get married.
A postnuptial agreement is a similar document which can be entered into after a couple are already married.
Can’t we just deal with all this if we divorce?
While it may not seem romantic to be agreeing how you will split your assets should your relationship not work out, it is quite the opposite. By agreeing what should happen to your assets should you ever need to get a divorce, you are actually showing how much you do love each other, as you are doing everything you can to make sure, should the worst happen, you avoid months, maybe even years, filled with arguments and lengthy court battles over who gets what.
What’s more, the reality is that it is much better to sort out everything when you are on good terms, than when emotions are running high after a break-up.
With just under half of all marriages ending in divorce, dealing with these issues now can save a great deal of heartache – and money – in the future.
Are prenuptial agreements legally binding?
In England and Wales, prenuptial agreements are not fully binding, so the courts do not have to enforce them. However, the courts will be reluctant to depart materially from the terms of the agreement provided certain conditions are fulfilled. In order to stand the best chance of an agreement of this type being enforced by a judge, it is vital to ensure that it is entered into correctly.
You must both:
- obtain independent legal advice
- understand the effect of entering into the agreement
- enter into the agreement freely and willingly and at least 21, if not 28 days, before the ceremony
- fully disclose your finances to each other
In addition, the agreement must be fair to both you and your partner.
Are postnuptial agreements legally binding?
In England and Wales, postnuptial agreements are not fully binding either. However, provided the same conditions are fulfilled, with the obvious exception of the 21/28 day requirement, the courts will similarly be reluctant to depart materially from the terms of a postnuptial agreement.
It’s also crucial that you do not rush into a prenuptial or postnuptial agreement. Otherwise, a judge could be less likely to enforce it.
A judge may be more likely to uphold prenuptial and postnuptial agreements which are more flexible and include the option to review the agreement, should circumstances change.
Get in touch for your free 30-minute consultation to discuss whether a prenuptial or postnuptial agreement could be right for you.