Pre-Nuptial and Post-Nuptial Agreements: All Your Questions Answered
Planning for your financial future through a nuptial agreement raises many questions. At Heritage Park Family Law, we have answered the most common queries we receive about pre-nuptial, post-nuptial, pre-civil partnership and post-civil partnership agreements to help you make informed decisions about your circumstances.
The cost of a nuptial agreement varies depending on the complexity of your financial circumstances and the level of detail required. Factors that influence the cost include:
Many solicitors, including our firm, offer fixed-fee arrangements for nuptial agreements once we understand your requirements. This provides certainty about costs from the outset. Whilst this represents an investment, it is worth considering the potential costs of contentious divorce or dissolution proceedings without an agreement in place.
During your initial consultation, we will provide a clear estimate based on your specific situation.
The time required depends on several factors, but generally you should allow at least three to six months before your wedding or civil partnership ceremony. This timeframe ensures:
If you are creating a post-nuptial or post-civil partnership agreement, there is no ceremony deadline to work towards, though it is still advisable not to rush the process.
Starting early helps avoid the appearance that either party felt pressured to sign close to the wedding or civil partnership date, which could undermine the agreement’s validity.
Yes, nuptial agreements can include provisions regarding pensions. This is particularly important for those marrying or entering a civil partnership later in life, or those entering a second marriage or civil partnership, where pension provisions may represent a significant portion of your wealth.
Your agreement can specify how pension assets should be treated, whether they should be ring-fenced, shared in a particular way, or offset against other assets.
However, it is important to understand that if the agreement would leave one party unable to meet their needs in retirement, the court may depart from its terms to ensure appropriate provision is made. The agreement should be structured to remain reasonable even when considering both parties’ needs in later life.
Yes, a pre-nuptial or pre-civil partnership agreement can include provisions about future earnings and income. You can specify that income earned by each party during the marriage or civil partnership should be treated in a particular way if you later divorce or dissolve the partnership.
However, there are practical limitations. If one party gives up their career to raise children or support the other’s career advancement, an agreement that leaves them with no claim on the other’s increased earnings might not meet their needs, particularly where there is a significant disparity in earning capacity caused by decisions made during the relationship. The court retains discretion to ensure appropriate outcomes, especially where one party’s needs would otherwise not be met.
A nuptial agreement continues for the duration of your marriage or civil partnership. There is no automatic expiry date, and the agreement remains relevant if you later divorce or dissolve the partnership.
However, significant changes in circumstances over time may affect how much weight the court gives to the agreement. An agreement signed 25 years ago might be viewed differently from one signed five years ago, particularly if your financial and personal circumstances have changed substantially.
This is why it is important to review your agreement periodically and consider updating it if circumstances have changed. The courts have made it clear in decided cases that not reviewing your agreement periodically could potentially ‘open the door’ for the court to ‘go behind’ your agreement if it is challenged in divorce or dissolution proceedings.
Once you are married or in a civil partnership, you cannot technically modify a pre-nuptial or pre-civil partnership agreement. However, you can create a post-nuptial or post-civil partnership agreement that supersedes or varies the original agreement.
Post-nuptial and post-civil partnership agreements follow the same legal principles as their pre-ceremony equivalents and can be used to:
Both parties would need to agree to the new terms and should receive independent legal advice, just as with the original agreement.
Having children represents one of the most significant life changes, and it is an important consideration in nuptial agreements.
A nuptial agreement cannot predetermine arrangements for children, including where they will live or child maintenance payments. These must always be decided based on the children’s best interests at the time, and trying to pre-determine years earlier what might be appropriate may make the agreement easier to challenge successfully. This is because if your agreement does not adequately provide for children’s needs, or if one parent has sacrificed career opportunities to raise children, the court may depart from the agreement’s terms to ensure appropriate provision is made.
It is advisable to review your nuptial agreement after having children to ensure it remains reasonable and relevant to your changed circumstances.
A significant disparity in wealth is actually one of the common reasons for having a nuptial agreement, and such agreements can be upheld provided they meet the necessary requirements.
However, the agreement must remain reasonable. This does not mean both parties need to receive equal amounts, but the agreement cannot leave one party destitute whilst the other retains substantial wealth. The agreement must ensure that both parties’ reasonable needs can be met adequately by its terms.
Courts consider what is appropriate in the context of the circumstances prevailing at the time of divorce or dissolution, not just when the agreement was signed. If the less wealthy party has sacrificed career opportunities during the relationship or taken on primary caring responsibilities for children, this may affect whether the original terms are considered to meet their needs.
Yes, protecting business interests is one of the most common reasons for creating a nuptial agreement. The agreement can specify that your business should remain your separate property and not be subject to division in divorce or dissolution proceedings.
This protection is particularly important for:
However, some considerations apply. If your business has increased substantially in value during the relationship, particularly due to your spouse’s or civil partner’s direct or indirect contributions, completely ring-fencing it might not appropriately recognise those contributions. The agreement should be structured to provide appropriate recognition of any contributions whilst protecting the business itself.
Full financial disclosure is absolutely essential for a nuptial agreement to carry weight. If it later emerges that one party failed to provide complete and accurate information about their assets, income or financial circumstances, this could render the agreement unenforceable.
The non-disclosure does not need to be deliberate. Even innocent or inadvertent failure to disclose all relevant information can mean the courts departing from the terms of the agreement. This is why it is crucial to be thorough and transparent from the outset.
If you discover that assets were not fully disclosed when your agreement was made, you should seek legal advice about the implications for your agreement’s enforceability.
Whilst there is no legal prohibition on drafting your own agreement, it is highly inadvisable. For an agreement to carry significant weight with the court, both parties should receive independent legal advice from qualified family law solicitors or barristers.
DIY agreements or template documents downloaded from the internet are unlikely to:
The cost of having an agreement professionally drafted is modest compared to the potential cost of divorce or dissolution proceedings without an effective agreement in place. It is an investment in certainty and protection for both parties.
The main difference between pre-nuptial and post-nuptial agreements is timing:
Legally, all types of nuptial agreement are treated similarly. The same principles apply regarding meeting both parties’ needs, full disclosure, independent legal advice and the requirement that the agreement appropriately addresses both parties’ circumstances.
Post-nuptial and post-civil partnership agreements can be particularly useful if:
You cannot force your partner to sign a nuptial agreement, and attempting to pressure them would actually undermine any agreement’s validity. Nuptial agreements must be entered into freely and willingly with full knowledge of the implications of signing one, which is why it is important you each have legal advice.
If your partner is reluctant, it is worth understanding their concerns. Common worries include:
Often these concerns can be addressed through:
If, after proper discussion and advice, your partner remains unwilling to sign, you will need to decide whether to proceed with the marriage or civil partnership without an agreement. This is ultimately a personal decision that depends on your individual circumstances and priorities.
This is a complex area that depends on where you move and where you might eventually divorce or dissolve your civil partnership. Different countries have different approaches to nuptial agreements:
If you are planning to live abroad, one of you is from another country, or you own assets overseas, it is important to:
This is a specialist area, and we can work with international family law experts to ensure your agreement is structured appropriately for your circumstances.
No. Even with a nuptial agreement in place, you cannot contract out of the court’s obligation to ensure appropriate provision is made. If the agreement would fail to meet your reasonable needs, the court can depart from its terms.
The court will always retain discretion to:
This protection works both ways. Whilst it means a wealthy spouse or civil partner cannot completely exclude their partner from any provision, it also means the agreement should provide appropriate protection for the wealthier party whilst ensuring the other’s needs can be met.
The 28-day rule means your nuptial agreement should be signed at least 28 days before your wedding or civil partnership ceremony. This requirement helps ensure that neither party felt pressured to sign simply because the ceremony was imminent and they did not want to cancel.
In practice, we recommend starting the process several months before your wedding or civil partnership. This allows time for:
If an agreement is signed within the 28-day window, it does not automatically become invalid, but it is more vulnerable to challenge on the basis that one party felt under pressure to sign. If you are not able to sign a pre-nuptial agreement 28 days prior to your wedding or civil partnership ceremony then we would advise you enter into a post-nuptial agreement as well as, or instead of, the pre-nuptial agreement.
The case frequently referenced is Radmacher v Granatino, decided by the Supreme Court in 2010. This landmark case fundamentally changed how English courts approach nuptial agreements.
Ms Radmacher, a German heiress, and Mr Granatino, a French investment banker, signed a pre-nuptial agreement in Germany before marrying. The agreement provided that neither would make claims against the other’s assets if they divorced. After the marriage ended, Mr Granatino made a financial claim, arguing that pre-nuptial agreements were not binding in English law.
The Supreme Court held that the agreement should be given decisive weight, provided it was freely entered into with full understanding of its implications, unless circumstances had changed such that it would not be appropriate to hold the parties to it.
This case established the modern approach: whilst nuptial agreements are not automatically binding, they carry significant weight if properly made. The court described the guiding principle as giving effect to parties’ autonomous choices unless doing so would fail to meet their needs.
Yes, protecting inherited wealth is one of the most common reasons for creating a nuptial agreement. Your agreement can specify that money, property or assets you inherit should remain your separate property and not be subject to division in divorce or dissolution.
This can be particularly important if:
However, some practical considerations apply. If inherited money has been mixed with matrimonial or partnership assets (for example, using an inheritance to purchase a family home), it can become more difficult to separate these assets cleanly. The agreement should address how inheritances will be kept separate and what happens if they are used for joint purposes.
Additionally, if inherited assets represent your only significant wealth and your spouse or civil partner would otherwise have no way to meet their needs, the court might make some provision from these assets despite the agreement.
If you were pressured, coerced or unduly influenced into signing a nuptial agreement, this is a serious matter that could render the agreement unenforceable.
Pressure can take many forms:
If any of these apply, you should:
If you have already signed an agreement under pressure, this is something that could be raised if you later divorce or dissolve your civil partnership. The court would consider whether the agreement was truly freely entered into.
Yes, it is good practice to review your nuptial agreement periodically, particularly after significant life events. Whilst the agreement does not expire, its relevance and appropriateness should be reconsidered as your circumstances evolve.
Consider reviewing your agreement after:
If the agreement no longer reflects your situation or would no longer appropriately meet both parties’ needs, you can create a post-nuptial or post-civil partnership agreement to update the terms. This helps ensure that if you ever do divorce or dissolve your civil partnership, your agreement will be given appropriate weight by the court. We would recommend that you review your agreement periodically, we suggest every 3 years, even if your circumstances have not changed, to ensure you both still feel it is fair and appropriate and wish it to continue.
Every situation is unique, and these FAQs provide general guidance rather than specific advice about your circumstances. If you are considering a nuptial agreement or have concerns about an existing agreement, we would be happy to discuss your situation in confidence.
At Heritage Park Family Law, we take the time to understand your individual circumstances and concerns, explaining complex matters in straightforward language and helping you make informed decisions about protecting your financial future.
