What is the role of pre-nuptial and post-nuptial agreements in high-value divorces?

The topic of pre-and post-nuptial agreements used to be quite taboo and considered ‘anti-family.’ What a strange idea. I accept that, on the face of it, they may seem unromantic, but I consider them to be quite the opposite of being anti-family. Increasingly, they are being used where couples marry later or marry for the second time. The majority of clients I see want a pre-or post-nuptial agreement to protect their children’s inheritance. How on earth is that anti-family?

What is a pre-nuptial agreement?

A couple enters into a pre-nuptial agreement in advance of their marriage, which sets out what would happen from a financial perspective in the eventuality that their marriage broke down.

What is a post-nuptial agreement?

A couple enters into a post-nuptial agreement during their marriage. There may be a number of reasons, including one party receiving a large inheritance, or there may have been difficulties within the marriage, and the document is seen as drawing a line in the sand with a view to the relationship moving forward.

What are the advantages of having a pre-nuptial agreement?

Communication: Money can be a very tricky topic for people to discuss. It is better to discuss what may happen if the marriage is unsuccessful when everyone is happy and in a positive frame of mind than to spend considerable sums at a point when everyone is raw and hurting emotionally. If you are able to communicate about such eventualities in advance, then your marriage probably stands a much better chance of success. Everyone’s intentions are clearly defined.

Certainty: No one goes into a marriage expecting it to end in divorce, but the divorce statistics are high, so why would you not want to consider what you would both need if the marriage does not succeed? I have insurance for my house. I am required to have building insurance by my mortgage company, but in addition, I have contents insurance in case the unexpected happens. This does not mean I want such an event to happen, but I am prepared and have a safety net if it does.

What are the disadvantages of a pre-post nuptial agreement?

Legally binding: Currently, the law in England and Wales has yet to quite catch up with society. At this time, although such agreements are not automatically binding, if certain recommendations have been followed, then the family court is obliged to give such documents due consideration as they become a factor. It is crucial that the recommendations are followed to ensure the best chance of the agreement being upheld. The recommendations are sensible and include:

• It must be freely entered into, with both parties having received independent legal advice.

• It must be signed at least 28 days before the marriage; this is considered a ‘cooling off period.’

• There must be full and frank financial disclosure.

• Ultimately, the agreement needs to be fair.

When executed properly, these agreements give you the best way to protect your family’s wealth and determine the outcome should your marriage be unsuccessful. Many business people see the financial sense in having such protection.

How we can help

I am an accredited specialist for Family Law and am on the Advanced Law Society Panel and the Advanced Resolution Accreditation. I have many years of experience in dealing with this complex and delicate area of law. I am a Collaboratively trained Lawyer, and that is a great way of dealing with pre-nups as we all work together and find the best solution for you and your family. I am here to help you with the next chapter. Please call me for a free 15 minute call to see how I can help you.