Iain MacAskill, Family Law Solicitor at Neves Solicitors, talks about Prenuptial and Postnuptial Agreements…
For many years, lawyers have advised their clients that there was no point in drawing up nuptial agreements because divorce courts would not be bound by them.
Since 2010, divorce courts have been prepared to give effect to a nuptial agreement that is freely entered into by each party fully understanding the implications, unless it would be unfair to hold the parties to that agreement.
A Prenuptial Agreement is an agreement entered into in advance of a marriage which sets out the arrangements the parties intend to make.
It can outline arrangements for living together during the marriage but more usually identifies assets and income and the division of those assets and income in the event that the marriage ends.
Ideally, you should take advice at least six months before the date of the marriage as this will allow time to properly consider a range of issues.
Prenuptial agreements should be signed at least 28 days before the wedding so as to avoid the risk of signing under duress which could invalidate the agreement.
Where couples leave it too late to sign ahead of the wedding, they can enter into a postnuptial agreement afterwards.
A Postnuptial Agreement is entered into after the marriage but in all other respects is very similar to a prenuptial agreement.
It is important that both parties are free to enter into the agreement. Such agreements inevitably mean that one or both parties are conceding certain rights, so may be worse off as a result of entering into the arrangement.
Is a nuptial agreement binding?
The agreement should be binding, unless the divorce court is not satisfied that:
• It was freely entered into
• Each party fully appreciated the implications
• Or in the circumstances applying at the time of the divorce it would not be fair to hold the parties to the agreement, then the court could set aside the agreement or modify it.
Want to find out more? Call Iain on 01908 304560 or email firstname.lastname@example.org