What is a Pre-Nuptial Agreement?
A pre-nuptial agreement (also known as a "pre-nup") is an agreement entered into prior to marriage by intended spouses with the objective of setting out what will happen to their assets on divorce.
A pre-nup should be entered into at least 28 days before the wedding ceremony.
What is a Post-Nuptial Agreement?
A post-nuptial agreement (commonly referred to as a “post-nup”) serves the same purpose as a pre-nup, but is entered into by spouses following their marriage.
Whilst not legally binding in England and Wales, weight can be given to nuptial agreements provided they are entered into correctly and drawn up in an acceptable form.
The Courts now have a track record of recognising the legitimacy of certain pre-nups provided they are entered into in a timely fashion prior to marriage (usually 28 days before the ceremony), where each party has had the benefit of independent legal advice, the terms are fully understood and neither party has coerced the other to enter into the agreement with there having been full and frank financial disclosure of all assets, liabilities and income in the preparation of the document itself.
The Courts will also need to consider whether any injustice would be served by agreeing to the division as stated. Absolute discretion will rest with the Courts in deciding whether or not the agreement should be followed when determining the outcome of any divorce.
In the event that the 28 day period is missed, it is still possible to enter into a post-nup setting out the proposed division of assets on divorce. The above factors (save for the timing criteria) would, however, still apply when determining whether the terms of the agreement are ultimately deemed fair by a Court.