Pre-nuptial Agreements and Post-nuptial agreements

If you are getting married or entering into a civil partnership and you have wealth to protect you should always consider having a pre-nuptial agreement (also known as a Pre-Marriage Agreement).

It is also possible to enter into a “Post-nuptial/marriage Agreement”.

These Agreements are not always binding on the court. The reason for this is that the court in this country has an absolute discretion to make orders on divorce or dissolution of a civil partnership and if the court takes the view that the Agreement is unfair or does not meet someone’s needs the court may not uphold the Agreement and may make an alternative order.

The courts are, however, increasingly aware of the importance of upholding your right to enter into a contract to determine what should happen to your property if a relationship breaks down. The fact that an Agreement has been made is also a significant factor that the court will take into account with the result that the court might depart from it but possibly not to the degree that it would have if no Agreement had been made.

In order to make sure that the Agreement is as watertight as possible it is important to have the Agreement well drafted. Mundays' family department have significant experience in preparing these Agreements.

If you are a foreign national or have assets in another country it is appropriate to consider entering into a Pre or Post Marriage Agreement in such other relevant country. At Mundays we will work in tandem with lawyers in that country to ensure that your interests are best protected.

A Pre or Post Marriage Agreement cannot provide absolute certainty but it is far better to have a sensibly drafted agreement than no agreement at all if there are assets to protect.

These agreements are not simple documents. They need to be carefully thought through and drafted. They need to be fair otherwise they will not be upheld. That will often involve some negotiations. It is a pre requisite for each party to have independent legal advice. There should not be any duress and therefore the agreements must be negotiated and signed in plenty of time before the marriage.

Preparing and negotiating these agreements involves very special skills. The Agreements are usually being prepared during the months leading up to a marriage. Our lawyers will help you to work together and avoid unnecessary stress on your relationship. This is often a difficult balancing exercise. Mundays lawyers are collaboratively trained and we find the collaborative process ideal, where you and your lawyers work together around a table to discuss and prepare the Agreement.

It is extremely important to regularly review a Pre or Post Marriage Agreement. As time progresses and if children are born or assets change in a way that had not been anticipated then the original provisions may be inappropriate and will need to be reconsidered.