What are nuptial agreements?
There are two types of nuptial agreements, pre-nuptial and post-nuptial.
A pre-nuptial agreement is made between two individuals before they are married. It usually sets out how the couple’s assets are to be divided if they were to separate as well as any financial arrangements.
A post-nuptial agreement is made between two individuals once they are already married and often covers the same issues as pre-nuptial agreements.
Are they enforceable?
The starting point is that parties to a marriage cannot enter into an agreement which overrides the Court’s autonomy to make orders on divorce consistent with the principles of s.25 Matrimonial Causes Act 1973. Therefore nuptial agreements are not automatically binding.
However, in the case of Radmacher v Granatino  UKSC 42, the Supreme Court confirmed by majority that:
“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.”
Following this, the court is required to give the appropriate weight in the circumstances of the individual case to the impact of the nuptial agreement and if certain safeguards are met, then the Court will hold the parties to the terms of that agreement.
Why are they important?
Nuptial agreements are very important for any couple where one party is keen to protect assets that they have brought to the relationship, or are likely to receive during the course of the relationship. It provides the parties with autonomy over the division of assets should they separate, agreeing that distribution at the outset so that on separation, they do not become embroiled in stressful and costly proceedings.
What we can offer
At Paul Robinson, we are able to assist in both drawing up pre-nuptial and post-nuptial agreements ensuring the same conforms with the safeguards identified in Radmacher and later recommended by the Law Commission on the reform of the law surrounding nuptial agreements. We are able to also provide independent legal advice on an agreement that may have already been drawn up. We offer a fixed fee initial appointment of up to an hour, currently undertaken remotely by telephone, followed by a written note of the issues discussed. If you would like further advice, then please contact a member of our family department on 01702 662963 / 020 35537115/ 01277 889193 / 01268 855679 or by using the contact form below.
This article does not necessarily deal with every important topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice. If you require specialist advice on this topic, please contact us to discuss how we may assist you.