Solicitor
Rainer Hughes
When approaching a milestone event such as a marriage or civil partnership, it is always a good time to reassess your financial position and put plans in place to protect yourself. This is particularly important if there is an imbalance in wealth between the two partners, such as one partner having business assets or a large inheritance. It is natural for that partner to wish to preserve or retain the wealth they have already accumulated, in the event of a future divorce or dissolution, particularly where there are children involved whose future needs are required to be considered. On the other hand, it is also sensible to plan ahead and determine how financial settlements should be arranged, in the event of a relationship breakdown, and this peace of mind is what a pre-nuptial and post-nuptial agreement provides.
Pre-nuptial and post-nuptial agreements have previously been the domain of high-profile people and couples involved in a high net worth divorce or partnership dissolution, but they have become increasingly popular as people take sensible steps to avoid costly litigation in the event of a relationship breakdown, and at an already stressful time.
What is a pre-nuptial agreement?
A pre-nuptial agreement is a formal agreement that a couple enter into prior to a marriage or a civil partnership. The agreement sets out how assets and financial arrangements will be divided in the event of the relationship ending, and therefore predetermines a financial settlement. This removes stress, provides clarity and avoids disputes which could result in costly court proceedings. A partner can use a pre-nuptial agreement to protect assets they have already accumulated from future claims, which UK laws might otherwise dictate are shared with the other partner.
What is a post-nuptial agreement?
A post-nuptial agreement is very similar to a pre-nuptial agreement in terms of its contents and purpose, but this is an agreement entered into by two partners who are already married, or who are already in a civil partnership. A post-nuptial agreement also defines how assets and financial arrangements will be divided in the event of a relationship ending.
The key differences between pre-nuptial and post-nuptial agreements
It is common for people to come to a decision that they wish to protect their own financial assets, and to provide clarity on how this is done, but this decision can be made at different times. Of course, these arrangements can be made before or after a wedding or civil partnership ceremony and therefore can be a pre- or post-nuptial agreement accordingly. However, there are other important differences in each arrangement which could suit certain people at certain times.
- Separation before divorce – A post-nuptial agreement can be useful in a scenario where a couple wish to separate, but have not yet decided that divorce or dissolution is the right conclusion. This could be due to various circumstances, including financial circumstances. In this event, a post-nuptial agreement acts as a holding position to define the current agreement, until such a time that a divorce or dissolution is decided upon and agreed to be the next course of action.
- Wealth accumulated during a marriage/civil partnership – It is also common for one partner to come into significant wealth during a marriage or civil partnership. This could be an inheritance, or through the sale of a business or a property owned prior to the marriage or civil partnership, for example. In this case, wealth protection is very important, and a post-nuptial agreement can clarify how this new wealth should be divided in the future.
- Condition – Although it is not considered a particularly romantic gesture and is considered by some to be putting a negative slant on an impending marriage or civil partnership, one partner may insist on a pre-nuptial agreement being put in place prior to the relationship becoming formal, and hence this becomes a condition that may even prevent the marriage or civil partnership going ahead. At the same time, it should be stressed that both partners have to enter into a pre- or post-nuptial agreement willingly and without pressure or duress, for it to be enforceable.
The key difference is that a post-nuptial agreement can protect a partner in the event that circumstances change during a marriage or civil partnership, and these circumstances weren’t known prior to the marriage or civil partnership.
What should pre- nuptial and post-nuptial agreements contain?
Common inclusions in a pre- or post-nuptial agreement are:
- Property – Whether marital or non-marital
- Bank accounts – Protecting individual income and savings and dividing joint accounts
- Debts – Again, whether marital or non-marital
- Maintenance – Arrangements for funding childcare
- Pensions – How these will be divided
- Inheritance – Whether to keep separate and/or pass down to children
- Valuable property – How items such as jewellery, artwork or valuable furniture is divided
- Business interests – Dividing business assets and restricting sale or transfer if applicable
A pre- or post-nuptial agreement wouldn’t normally predetermine child arrangements, as these can change over time. It also wouldn’t include personal issues, such as clauses relating to lifestyle choices, household responsibilities or social media usage.
What considerations should you make when preparing a pre- or post-nuptial agreement?
A pre- or post-nuptial agreement is not yet a legally binding agreement in the UK, but they are usually given significant weighting by the courts in the event that certain conditions are met. These can include:
- A pre-nuptial agreement should be entered into at least 28 days prior to a marriage or civil partnership, to avoid accusations that undue pressure or coercion was involved.
- There should be full financial disclosure from both parties.
- Both partners were provided with independent legal and financial advice prior to formalising the agreement.
- The agreement is fair and reasonable for both parties and also prioritises the needs of any children involved in the relationship.
Although a pre- or post-nuptial agreement requires both partners to look into the future and assess the likelihood of certain things happening, and many people might not like to do that, such agreements can provide an element of trust and peace of mind and prevents the possibility of disputes in the future. Ultimately, this can help to make the divorce, separation and dissolution process amicable and much less emotional.
About Kaylee Justham
Kaylee Justham joined Rainer Hughes Solicitors August 2023 as a Solicitor in the Family Department. Kaylee has over 10 years’ experience working in Family Law, starting off as a paralegal and Trainee Solicitor in which she qualified as a Solicitor in May 2018. Kaylee provides a wide range of services to her clients to include all aspects of family matters to include; matrimonial matters, cohabitation disputes and private children matters. Kaylee also has experience with drafting Wills, Legal Power of Attorneys and Deeds of Trusts.
Kaylee regularly represents her clients in Court and prides herself on her friendly, approachable, direct and forward-thinking manner. Kaylee understands the needs of her clients and strives to act in their best interests in helping them to achieve the best possible results.
Kaylee is considered an extremely safe pair of hands and is dedicated to listening to her clients and aiming to make the process as stress free as possible.