Nuptial agreements are very much the same whether they are entered into before you are married (pre-nuptial) agreement or afterwards (post-nuptial). A nuptial agreement is an agreement entered into by a couple, either in anticipation of marriage or afterwards, as to how they will deal with their finances and in particular on the assets that they have been brought into the marriage, should they separate.
Pre-Nuptial Agreement
A pre-nuptial agreement must be entered into before you are married and must be expressed to be in contemplation of your marriage.
To ensure that one party is not rushed or pressured into making the agreement the agreement must be finalised at least 4 weeks before the date of your marriage.
The Law Commission in 2014 issued a report recommending legal reforms in this area and set out the criteria that should be in place if a Nuptial Agreement is to be followed by the court as set out in the case of Radmacher v Grantino.
The criteria are:
- It must be a valid contractual agreement;
- It must be executed as a Deed (signed and witnessed by both parties);
- It must not be entered into less than 28 days before the wedding;
- Parties must exchange full financial disclosure before the agreement is entered into;
- Both parties must receive legal advice;
- The agreement must not prejudice any children; and
- The needs of both parties must be met by the terms of the agreement.
To ensure that any pre-nuptial is going to be properly drafted and as legally binding as possible, it is vital that both parties seek independent legal advice.
Post-Nuptial Agreements
The only real difference between a pre-nuptial agreement and a post-nuptial agreement is the time at which it was entered into. The case of Radmacher v Grantino applies to both types of nuptial agreement and the only difference in the Law Commission recommendations is that the post-nuptial agreement does not of course need to be entered into 28 days before the wedding.
As with a pre-nuptial agreement, a post-nuptial agreement sets out how the parties will deal with their finances should they separate and can also provide for how the parties arrange their finances now and going forward.
The steps you have to take before entering a Post-Nuptial agreement are the same as with a pre-nuptial agreement and therefore it is vital that both parties received legal advice throughout the process.
