It has been thoroughly publicised that Pre-Nuptial Agreements (commonly known as pre-nups) may be recognised by the Courts of England and Wales in the event of divorce proceedings. In other words, you can reach an agreement before your marriage which stipulates what provisions will be made, financially, in subsequent divorce proceedings. Certain formalities must be followed – if not, the agreement (or parts of it) may not be valid. More often than not, a problem arises because the wedding ceremony is looming, the happy couple want a pre-nup, and they don’t factor in enough time for the process of finalising an agreement.
If a pre-nup is signed just before the marriage takes place, there may be an inference that the party in a weaker financial position is under duress to sign it, in which case the pre-nup will not be valid.
Pre-nups will generally involve financial disclosure, in the form of an itemised schedule of assets. After all, you can’t give up your entitlement to particular assets, or agree how they will be shared, if you don’t know what those assets are. Depending on the nature of the assets, negotiations can be protracted, so don’t assume that the agreement can be finalised quickly.
Potential pre-nup clients are surprised to find that the alternative is to enter into a Post-Nuptial Agreement – it will/can be on the same terms as a pre-nup, but it is completed after the ceremony.
This isn’t just for newly-weds either. If for example you’ve been married for 20 years and one of you has a financial windfall, you too can have a post-nup.
Pre and post nuptial agreements are not binding on the Court in subsequent divorce proceedings (as no agreement can override legislation or prevent a Judge from deciding on the appropriate division of assets) but a properly constructed agreement that is freely entered into is likely to be recognised by a Court.