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Pre & Post Nuptial Agreements

Pre-Nuptial Agreements

Pre-nuptial agreements are useful financial planning tools that document how married couples and civil partners would like their property to be divided in the unfortunate event of the breakdown of their relationship. The contents of the agreement can vary widely depending on the individual circumstances and concerns, but often include provision for the division of property and maintenance.

Although pre-nuptial agreements are currently not legally binding in the UK, the Supreme Court ruling in the case of Radmacher in October 2010 changed the way in which pre-nuptial agreements are viewed.

The Supreme Court is the highest court in UK law and it stated that pre-nuptial agreements should be given decisive weight in divorce proceedings, provided that the parties entered the agreement freely and that they have a full appreciation of the implications of the agreement.

Courts will infer that parties entering into pre-nuptial agreements governed by English law, intend them to be binding.

However, courts will not uphold any agreement if the prevailing circumstances make it unfair to do so.

Therefore whilst pre-nuptial agreements are not formally legally binding, they have now been clarified and can be given decisive weight provided that they have been properly drafted. They are a clear record of the parties' intentions and should be upheld, provided they have been entered into freely, the parties fully appreciate the implications and they are reasonable.

We therefore, now have clear guidelines for those wishing to protect family or personal wealth before entering into marriage, and we are recognised by our peers as providing leading advice in this area.

Pre-nuptial agreements are becoming standard practice before marriage, and far from being unromantic, they are a necessary part of sensible personal financial planning.

For more details and to download a brochure, please click here.

Post-Nuptial Agreements

A post-nuptial agreement is an agreement made between two parties dealing with provision for maintenance, children and division of property in the event of the marriage breaking down.

An agreement will be exactly the same as a pre-nuptial agreement, but is entered into after marriage and prior to separation.

Traditionally, post-nuptial agreements not considered to be legally binding. However, in the 2008 case of MacLeod -v- MacLeod, a court held that if parties enter into a post-nuptial agreement, and the conditions of obtaining legal advice and financial disclosure are met, the mere fact that the agreement is not what a court would have ordered is not enough to set the agreement aside. It would appear that post-nuptial agreements, when properly executed, can be binding and best practice advice for those considering marriage is to enter into both a pre and post-nuptial agreement, as was the situation in the MacLeod case.

The Supreme Court in Radmacher clarified the situation further and whilst the courts will infer that parties' entering post-nuptial agreements intend them to be binding, the court will still refuse to uphold such agreements, if the prevailing circumstances make it unfair to do so.

Best practice advice is to enter into a pre-nuptial agreement prior to marriage, with regular updates and review periods built in throughout the marriage. However, we can advise you on whether a Post Nuptial Agreement would be a viable option in a range of circumstances.

We offer pre and post-nuptial agreement packages to those wishing to protect their assets.

For more details and to download a brochure, please click here.

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