It may sound unromantic to couples, but planning your financial arrangements early on with a pre-nuptial agreement can avoid bigger problems further down the line.
As couples are marrying increasingly later in life, many bring significant personal wealth into their relationships, from property and business interests to inheritance and investments, sometimes even leading to interest in post-nuptial agreements.
Kate Barber, Partner in Thrings’ Family Law team, explains why pre-nuptial and post-nuptial agreements have an important role to play.
What are pre- and post-nup agreements?
A pre-nuptial agreement (or “pre-nup”) is a legal document entered into before marriage that sets out how assets should be divided if the relationship ends. A post-nuptial agreement (or “post-nup”), meanwhile, serves the same purpose but is signed after the marriage has taken place.
Both are designed to protect the interests of the two people in the couple and help ring-fence assets acquired before marriage, including:
- Property
- Business interests
- Inheritance (received or anticipated)
- Interests in family trusts
- Investments
- Valuable items such as jewellery or artwork.
These agreements allow couples to set clear expectations and protect their financial futures, especially where one or both parties have built up wealth independently.
Are they legally binding?
While pre- and post-nuptial agreements are not yet legally binding in England and Wales, courts increasingly give them significant weight, especially when they are entered into freely, with full understanding and proper disclosure. Case law has established that such agreements should be upheld unless it would be unfair to do so, as well as reinforcing the importance of transparency in nuptial agreements.
Why consider a nuptial agreement?
No one enters a marriage expecting it to end, but a nuptial agreement offers a couple greater certainty and control over financial outcomes should the relationship break down. It allows both parties to make informed decisions about their future, protect pre-acquired wealth, and reduce the risk of costly disputes
For business owners, those with inherited wealth, or individuals with complex financial arrangements, a well-drafted agreement can safeguard assets and ensure clarity around expectations. It’s not about anticipating the failure of a union. It’s about planning responsibly and respectfully.
Nuptial agreements can also play a vital role in protecting legacies for children, particularly in second marriages or blended families. By ring-fencing assets intended for children, such as inheritance or family business interests, couples can ensure that their long-term intentions are respected and upheld. This can help avoid future conflict and provide reassurance that family wealth will be preserved for the next generation.
Ultimately, a nuptial agreement is a tool for transparency, fairness, and peace of mind, helping couples enter marriage with mutual understanding and confidence in their shared future
Creating an effective pre-nup
To be effective and to stand up in court, a nuptial agreement must follow specific procedural safeguards. These include:
- Full and frank financial disclosure: Both parties must provide a clear and honest account of their assets and liabilities. Failure to disclose can invalidate the agreement.
- Independent legal advice: Each party should receive advice from a solicitor to ensure they understand the implications of the agreement and are entering into it freely.
- Timing: Pre-nuptial agreements should be signed well in advance of the wedding to avoid any suggestion of pressure or duress. A rushed agreement close to the wedding date may be challenged.
- Fairness: The terms must be reasonable and not leave one party in a significantly disadvantaged position. Courts will assess whether the agreement meets the needs of both parties, especially in cases involving children or significant financial disparity.
Failing to meet these standards can undermine the agreement entirely. Even a seemingly “bulletproof pre-nup” can unravel if disclosure is incomplete or misleading.
Kate Barber, Partner in Thrings’ Family Law team, said: “A nuptial agreement isn’t about expecting a relationship to fail. It’s about protecting what you’ve worked hard for and making sure your wishes are respected. It gives couples clarity, confidence, and control over their financial future, whatever life may bring.
“Having a nuptial agreement will help protect both people in the relationship, but if you do opt to have one, make sure it is done right, backed by sound legal advice, as even the most bulletproof pre-nup could be undermined if the standards aren’t met.”
Thrings Family lawyers are experienced in all areas of the law that are close to home. Whether it is marriages and pre-nuptial agreements, or divorces and separations, they will put your best interests first, taking the time to get to know you so that you are supported with sound advice tailored to your needs. To find out more, get in contact.
