When should you enter into a post-nuptial agreement?
23 January 2020 by Aimee Edwards
Nuptial agreements are legal agreements made between couples that set out how they wish to deal with financial matters if their marriage or civil partnership were to irretrievably breakdown. One view is that nuptial agreements will provide a level of certainty and protection which promotes and encourages the marriage or civil partnership.
At present, under the law in England and Wales, nuptial agreements are not binding on a court when dealing with financial matters on the breakdown of a marriage or civil partnership. However, if parties have signed a nuptial agreement then it is a factor to be taken into consideration by the court and the court should give appropriate weight to that nuptial agreement.
Following the landmark case of Radmacher (formerly Granatino) v Granatino  UKSC 42 a court should give effect to a nuptial agreement that is:
- Freely entered into by each party; and
- Where both parties have a full appreciation of the implications;
unless in the circumstances prevailing, it would not be fair to hold the parties to their agreement.
Nuptial agreements can be made prior to the couple’s marriage or civil partnership, and if so, they are referred to as pre-nuptial (or pre-civil partnership) agreements. Alternatively, they can be entered into after the date of the marriage or civil partnership and they are then referred to as a post-nuptial (or post-civil partnership) agreements.
Post-nuptial agreements can be made for a number of reasons, for example:
- A couple might not have had time to sign a nuptial agreement long enough before their wedding;
- There may be change in circumstances, for example, an inheritance which has been received by one party and they wish to protect this from a claim on divorce;
- The parties might wish to provide financial protection to their children from previous relationships by ensuring that what a party has brought into the marriage or inherited will be passed to their children by inheritance, if the new relationship were to irretrievably breakdown;
- The couple might have signed a pre-nuptial agreement, which by its nature is conditional upon the marriage or civil partnership taking place, and they want to strengthen the enforceability of the agreement and confirm their intentions, should they ever be questioned, to enter into the agreement. A post-nuptial agreement would be a suitable solution because it is not conditional on the marriage or civil partnership.
Whilst the court in England and Wales looks to the Matrimonial Causes Act 1973 or the Civil Partnership Act 2004 when considering how financial matters will be resolved on the breakdown of a marriage or civil partnership, it also operates a discretionary system allowing it to consider each case on its facts and if a couple have freely entered into a nuptial agreement which is fair and meets the parties needs then that agreement should be given decisive weight in court.
Nuptial agreements can raise complex issues, even in relatively straight forward cases, since consideration needs to be given as to what the court would be likely to consider a fair financial settlement if the parties were to separate. It is always important to seek legal advice from a family law specialist if you are considering entering into one.
If you want to obtain advice, we have an experienced team of family lawyers who are able to advise and assist you on the best possible approach to take – contact Fisher Jones Greenwood by calling 01206 700113 or email [email protected].