Prenuptial & postnuptial agreements

Prenuptial and postnuptial agreements are becoming increasingly popular but it is important to ensure that they are properly drafted, otherwise they may not be upheld. If you are engaged or married and wish to try to ring-fence specific assets or family wealth, our family lawyers have extensive experience and expertise in drafting nuptial agreements.

Our family team can assist with advising you on the content and preparation of a prenuptial or postnuptial agreement. We will be able to give you easy-to-understand advice about the issues to consider when entering into an agreement and negotiate the terms of such agreements based on your objectives and interests.

What is a prenuptial/postnuptial agreement?

At its simplest, a prenuptial agreement is an agreement prepared and signed in advance of the marriage, whereas a postnuptial agreement is prepared and signed after the marriage. Prenuptial and postnuptial agreements are written contacts that a couple enter into in order to set out their intentions as to the ownership of assets, inheritances, incomes and debts and how they want their finances to be dealt with following a separation, in an attempt to avoid the emotional and financial impact of potential dispute later down the line.

Why might I need a prenuptial premarital agreement?

There are a number of reasons why you might want a prenuptial agreement, such as:

• To protect assets which you have acquired before getting married or an inheritance that you may acquire and wish to stay within the family
• To protect specific assets, such as a business
• To provide certainty and avoid conflict in case the relationship ends.

Are prenuptial and postnuptial agreements legally binding?

Whilst prenuptial or postnuptial agreements cannot override the discretion of the court when deciding financial matters upon divorce, judges will now take the terms of these agreements into account as a relevant factor when deciding such issues. Judges may decide it is appropriate to uphold such agreements so long as certain guidelines have been followed when the agreement is being prepared.

The validity and enforceability of prenuptial agreements will depend largely upon the document being properly drafted in good time before a wedding and with both parties having full disclosure of the financial position of the other at the time. It is also important that both parties have taken independent legal advice.

What should a prenuptial or postnuptial agreement include?

A properly drafted prenuptial or postnuptial agreement will often seek to protect a party’s separate property (such as property, savings, inheritance and business interests) in the event of the breakdown of the marriage, whilst also confirming how any joint property will be dealt with. An agreement should also include financial disclosure from each party, to ensure that there is transparency and both parties can enter into the agreement with the benefit of full legal advice. Many nuptial agreements also contain a review clause listing certain events that may trigger a review of the terms.

However, even a well draft prenuptial agreement is always subject to the scrutiny of the court, which retain a discretion to make orders which depart from the terms of the agreement. If, after taking all matters into consideration, a judge feels that one party’s needs have not be met by the terms of the agreement, they can refuse to endorse some or all of the terms. This is why it is important to obtain proper legal advice from a suitably experienced family lawyer at the outset.

Family-related legal issues can often be emotionally challenging and complex. Our team are experts in dealing with these matters and are here to guide and support you every step of the way. Our family and divorce lawyers help client across Kent, London and the South East. We advise on a full range of family legal services, from divorce/dissolution and related financial settlements to the arrangements for children and associated children matters. We also advise unmarried couples on the breakdown of their relationships.

We have particularly extensive experience in supporting high net worth individuals, dealing with matters involving complex asset structures and international elements. We help clients put in place nuptial or living together agreements, and advise on steps that need to be taken to protect our clients in need of or responding to injunctions.

Our team of family lawyers are legal professionals who are renowned for offering practical, clear and common sense advice and for providing compassion, empathy and a steadying hand in even the most unusual and complex of circumstances.

Our expert family and divorce lawyers in Kent are leaders in their field and our Family department is regularly recognised in rankings such as The Times’ ‘Top Law Firms’, Spear’s 500 Family Law Index and ePrivate Client’s Top Family Law Firms. We are also ranked as Band One in the Chambers legal directory and as Top Tier in the Legal 500.