Should You Get a Pre-Nuptial Agreement?

A pre-nuptial agreement (pre-nup) is an agreement made before marriage. It is usually intended to deal with financial arrangements if the marriage breaks down. This includes how any future children will be cared for and how your assets will be divided to ensure your individual needs are met, including what assets you might each seek to keep separate and ringfenced from inclusion in the matrimonial pot.  

Whilst it might not seem romantic, usually there is no better time to decide what is fair than when you are happy and content in your relationship and, if handled correctly, these conversations can provide a strong foundation for your marriage.

A post-nuptial agreement (post-nup) is a legal agreement entered into after a marriage has taken place. It is often used to revisit and update the terms of an existing pre-nup agreement, in which case the post-nuptial agreement typically replaces the pre-nup. There are many reasons why an agreement may need to be reviewed, for example, where one of you is about to receive a significant inheritance that was not anticipated at the time the original agreement was signed.

Sometimes a post-nuptial agreement is put in place because your marriage may be in difficulty and you would like to have the clarity of knowing the financial arrangements in the event you cannot work through your difficulties.  

The other circumstances where a post-nuptial agreement is often put in place is where the pre-nuptial agreement was signed very close to the wedding and it might be later argued that one or both of you was under undue pressure to sign the agreement.

Usually the agreement sets out which assets are shared (often referred to as matrimonial or joint property) and which assets are not shared (often referred to as non-matrimonial or separate property).

An English pre-nuptial agreement will often set out how capital needs, such as housing, should be met. This is particularly important where the division of assets may not fully meet those needs.

In this context, “needs” go beyond basic subsistence. They reflect the standard of living experienced during the marriage. This means that what is considered reasonable will vary depending on the family’s circumstances. It can also cover aspirations for any future children, such as private education.

A pre-nuptial agreement may also address ongoing support (maintenance). However, it is often difficult to predict future income needs at the point of a divorce.

A pre-nuptial agreement can certainly protect inherited assets from division on divorce provided that the agreement meets needs.  Inherited assets that remain held separately would not usually be regarded as matrimonial property.  As such there would be no entitlement to share in such inherited assets unless that is necessary to meet needs. A pre-nuptial agreement can confirm the separate nature of inherited assets and effectively ring-fence such assets.

What is important is that you and your fiancé understand what you are agreeing to when you sign the pre or post nuptial agreement. This means you must understand what you are acquiring or giving up by signing the agreement.  

To understand what you are acquiring or giving up, you need to have a broad understanding of each other’s wealth.  Whilst this does not necessarily require financial disclosure, it is good practice to annex a schedule of assets and income to the agreement.

Similarly, whilst separate legal advice is not a requirement for a valid agreement, such advice will show that you both understood the agreement. A pre or post nuptial agreement is much more likely to be upheld if there is financial disclosure and legal advice.

There are a couple of ways in which we work with couples in preparing a pre or post nuptial agreement:

• Collaborative Approach

In this approach you work together with your individual lawyers, prioritising collaboration, so that between us we can create an agreement which reflects your shared vision for your future. This provides a framework to protect individual interests without promoting potentially polarising views. If you adopted this style, you would each instruct collaboratively trained lawyers and actively participate in open discussions to encourage mutual understanding and fairness. This can increase trust, minimise potential tension and lead to a quicker agreement for couples where there are complex assets, family and legal considerations, of which one partner may have a greater understanding.

• Traditional Negotiation

If you choose this approach, you will each have your own lawyer who will act as your intermediary to negotiate the terms of your agreement for you. As your lawyer acts as the primary point of contact for conversations about the agreement, it can reduce the risk of direct confrontation, whilst ensuring that each of your interests are protected.

• Mediation

If, as a couple, you wish to lead discussions about your agreement yourselves, mediation can provide a safe, neutral forum to discuss your proposals. The mediator will be able to help you explore your options, consider the legal implications of different suggestions and reality test your ideas. Alongside this it is helpful to have individual legal advice. The mediator can also summarise the proposed terms of the agreement so that they can be reviewed and finalised by your respective lawyers.

There is not a minimum number of days that a pre-nuptial agreement can be signed before the wedding. What is needed is sufficient time for you to take advice and reflect on the terms. You should not be under undue pressure to sign.

It is often said that a pre-nuptial agreement should be signed at least four weeks before the wedding. This came out of the Law Commission’s recommendations for binding pre and post nups. The recommendations did not become law. However, if the agreement is signed very close to the wedding there may be greater scope to argue that you or your fiancé were under undue pressure and should not be held to the terms.

Technically, pre and post-nuptial agreements are not enforceable in England and Wales unlike many other countries. However, they are taken into account on divorce and will usually be given weight and upheld if there was legal advice and financial disclosure and, importantly the agreement meets needs (see above).  An agreement that does not meet needs is not going to be upheld in England & Wales though it might still suppress claims that could otherwise be made.

The law on financial provision on divorce varies between countries. The same applies to pre nuptial agreements and post nuptial agreements. Lawyers in England & Wales can only advise you on likely outcomes in England & Wales, and on how a pre or post nuptial agreement may be treated here.

If you sign an agreement in England and may divorce in another country, for example if you move or have connections there, you should also take advice in that country. At Family Law in Partnership, we work closely with leading family lawyers in many jurisdictions and can help you arrange advice abroad.

If you have a foreign pre or post nuptial agreement and divorce in England & Wales, the court will take it into account. It will only uphold the agreement if it meets English requirements.

Where you were married is not usually a factor in deciding where you can divorce. Jurisdiction rules vary between countries, but in most cases your habitual residence is key. This usually means that you or your spouse must live in a country for a set period before you can divorce there. Your nationality and domicile (the place you are most closely connected to) may also be relevant.

As referred to above, the issue is likely to be where you may divorce if the marriage breaks down. Where you or your fiancé have international connections, we will often work with specialist family lawyers in the relevant countries to ensure that the agreement is upheld wherever a divorce may take place.  Sometimes this is done by having one agreement on which advice has been taken in each country or through separate agreements in each country.

If your fiancé is not comfortable agreeing to a pre-nuptial agreement, it can feel difficult. In some situations, it may raise important questions about whether you are both aligned on financial expectations before marriage.

That said, it is often still possible to move forward constructively. We find that a reluctant fiancé may be more open to engaging if the agreement is developed collaboratively, with both of you involved in shaping the outcome. This approach can help ensure that the agreement feels fair and balanced, and that it protects you both while meeting your respective needs.

To help you communicate effectively as a couple and navigate the emotional challenges that come with these kinds of conversations, our team includes relationship therapists and counsellors, who can work alongside our lawyers to support you individually or as a couple. They are flexible to your needs and can work with you in-person or online.