Status of prenuptial agreements in divorce

Pre-nuptial agreements are not the easiest of subjects to bring up with your significant other. They seem to fly in the face of the commitment you’re about to make. They’re liable, some might think, to make you question your partner’s feelings just as you’re poised to declare your undying love.

Let’s face it, they’re not the most romantic thing in the world. Neither, however, is enduring a bitterly contested scrap later down the line over who owns what and how much each partner is worth. Just ask Paul McCartney, whose divorce in 2008 from Heather Mills saw his financial affairs picked over by all and sundry in the media. The advantage of them is that they can make any future separation more straightforward, and therefore less stressful for both parties. Not surprisingly, given the cost of divorce, pre-nups are becoming more popular.

It is important to remember that pre-nups are not legally binding, and it is up to the courts to decide whether or not they are upheld. Post-nuptial agreements, on the other hand, can be legally binding (as long as certain procedures have been followed) so even once you have the ring on your finger you’re not too late.

If you do decide to go ahead, then the following is a quick guide to this most delicate of subjects. 

What is a pre-nup?

A pre-nup is a written contract between two people who are about to get married or enter into a civil partnership. They set out the couple’s intentions regarding division of property and assets during their time together and in the event of separation. They can also cover the couple’s intentions regarding their children. The terms of it must be reasonable and cannot override the laws of the country.

Should the couple divorce or separate, then the courts have the power to decide on the division of assets and property, and custody of children. A pre-nup has no legal authority. It cannot prevent a court making what it considers to be a fair division of assets, and cannot prevent either of the parties applying to the courts for financial relief.

What, then, is the point of them?

The answer is that a judge can decide whether or not to uphold the agreement. They are generally considered to be influential on the court, so long as they are entered into in the right way and make reasonable financial provision for both parties. Family lawyers say judges are increasingly inclined to look at them favourably, particularly where the marriage or civil partnership is short. They can influence the court’s decision. The pre-nup is also useful because it can shed valuable light on the couple’s financial standing at the point of entry into marriage or civil partnership.

They are enforceable in many other countries, including the US.

What is a post-nup?

A post-nup is the same as a pre-nup, but is drawn up after the wedding or civil partnership ceremony.

At the end of 2008, the most senior judges in England and Wales ruled in a high-profile divorce case that post-nuptial agreements are legally binding, provided certain conditions are met.

According to the court’s ruling, the agreement must make reasonable provision for any children. Both parties to the agreement should have received separate independent advice, there should be proper financial disclosure, and no undue influence should be brought to bear on either party.

That means, for example, that a husband cannot pressurise a wife by threatening to leave her unless she signs a post-nup, or forget to mention money stashed in a separate bank account. 

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