Statistics for 2017 in England and Wales show that 42% of marriages ended in divorce.  Divorce is a traumatic process. Pre-nuptial and/or Post-nuptial agreements can make a divorce less difficult, but what are they and what is the difference?

Pre-nuptial agreement

As the name suggests, it is an agreement made before marriage.  The agreement is likely to detail what each party has at the time in terms of assets, capital, income and pensions, and how it will be divided upon divorce.

Post-nuptial agreement

Is when a pre-nuptial agreement has not been possible or happened before marriage and occurs after the marriage has taken place instead.  Like a pre-nup it governs the terms of financial separation on divorce.

Are they enforceable?

There is nothing in law that makes a pre or post nuptial agreement legally binding. It is merely ‘persuasive’ upon the Judge dealing with financial separation on divorce. They are however recognised by the Court and if drafted carefully and ticks all the boxes can be relied upon. However, we have a discretionary system in England and Wales and the Court can disregard an agreement for the right reasons.

What should an agreement include?

In order to consider what the agreement will need to include for it to be upheld by a Judge, should one party seek to renege on it, we look to case law.

Useful guidelines were set out by the Supreme Court in the case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42

The case set out that if an agreement deals with the following and meets the reasonable needs of the other party and/or any children, then there is a presumption that it should be upheld:-

  1. There has been full and frank financial disclosure from both parties.

  2. Both parties have received independent legal advice before entering into it.  If necessary, one party has paid for the other’s legal advice if they were unable to afford it prior to signing the agreement.  In that case, the legal advice for the opponent has been from a specialist lawyer.

  3. There has been no undue pressure and it is entered into freely and knowingly.

  4. For a pre-nup it should be entered into at least 21 days before the marriage

The important message is that if the agreement leaves the other person and/or children in a position of real need then the Judge is likely to go behind it.

It is always better to have an agreement than not. Pre-nups and post-nups must be drafted and considered carefully and it is sensible to take specialist legal advice in doing so, and before entering into such an agreement.

Farleys has a team of specialist divorce lawyers who can assist, should the need arise. Contact us on 0845 287 0939 or submit your enquiry through our online form.