Wedding season sparks rise in pre nuptial agreements

The rising popularity of pre nuptial and post nuptial agreements marks a significant change in people’s attitudes towards marriage in the South confirms Hampshire solicitors, Moore Blatch.

Once considered to be unromantic, many couples are now more willing to enter into prenuptial agreements and discuss financial issues before getting married. An even greater proportion are also entering into post nuptial agreements once they have been married for some time.

Moore Blatch family expert Jane Thomas says that there is growing recognition of the protection that these agreements can offer, which are no longer just associated with the rich and famous.

A pre-nuptial agreement is designed to protect the assets couples bring to the marriage, such as inheritance, property or a business, ensuring anything owned prior to the marriage remains the individual’s property should a divorce occur.

“They also allow couples to make decisions about how any wealth created during the marriage should be divided if the worst happens,” adds Jane.

A post nuptial agreement is made between a husband and wife after they are married. They are a good idea particularly for couples who reconcile after a period of separation and who wish to regulate their finances in case the marriage breaks down again.

It is important to note that both pre and post nuptial agreements cannot prevent claims on behalf of any children of the marriage.

Following the decision in the case of Radmacher v Granatino, prenuptial and postnuptial agreements have increased in popularity. Although they are still not legally recognised in the UK, the courts will give “decisive weight” to the terms of these agreements, to see what a couple's intentions are. The latest case also confirms that there should be no distinction made between a pre and post nuptial agreement.

“For pre nuptial agreements to be relied upon, it is essential that each party enters into them freely with a full appreciation of its implications,” adds Jane.

A lack of financial disclosure and a failure to obtain independent legal advice are factors which could lead to a prenuptial agreement being held to be unfair.

Jane confirms: “It is increasingly clear that the courts are giving these agreements significant weight when exercising their discretion in divorce disputes, despite not being legally binding.

“Either party can still apply to the court for financial provision and the court can still make its own assessment on whether it would be unfair to hold the parties to the terms of a pre/post nuptial agreement.”

Jane provides advice below on the process that should be followed by any couple wanting to enter into a pre or post nuptial agreement:

• Any pre nuptial or post nuptial agreement should be in writing and signed by both parties.
• Both parties need to provide a detailed disclosure of all of their assets before entering into an agreement.
• Each party has to have taken independent legal advice before entering into an agreement.
• Pre nuptial agreements should be agreed in advance of any wedding. Allow as much time as possible before the wedding, preferably at least one month, if not more.

Jane concludes: “For an agreement to be given weight by the courts, it is vital that both parties must enter into it of their own free will, without any pressure and be properly informed of its implications.  Above all, the agreement must be fair.  The Law Commission is now considering comments to their consultation paper and the results are eagerly awaited."

“Following the above process and receiving independent legal advice will provide a strong indication to the court that the agreement has not been entered into lightly – which will help to ensure a couple's wishes are followed should they separate.”