When is the right time to consider Prenups and Postnups?

Last year a YouGov poll found 42% of British people consider prenuptial agreements to be a good idea, and between 1/4 and 1/3 of those earning over £60,000 a year are likely to put one in place, with women more likely to do so than men.

Why are Prenuptial agreements becoming more popular? 

As the popularity of prenuptial and postnuptial agreements continues to grow in England and Wales, they need to be considered before or during a marriage, particularly if financial circumstances change. They are especially important to have where one person is looking to protect their wealth, whether this was acquired or generated by them or passed to them as generational wealth and/or succession planning.

What is the law?

Prenuptial agreements (“prenups”) are signed by the couple before marriage and postnuptial agreements (“postnups”) are signed after marriage.  Neither are automatically binding on any judge dealing with finances on divorce, but courts should give effect to an agreement that is freely entered into by each party with a full appreciation of its implications unless it would not be fair to hold the parties to the agreement.

What is the role of Prenups and Postnups in divorce proceedings? 

Without any agreement in place, every couple getting married in England and Wales is already committing themselves to having a judge decide their financial arrangements according to the law at the time of any divorce.  

How do courts consider assets in divorce proceedings? 

Under current divorce law in England and Wales, all resources worldwide owned by the parties are considered by a court as part of financial proceedings. This includes assets in each party’s sole name such as properties or shareholdings, inherited assets, pensions and all forms of income.  As such, the court has powers to make orders to share some or all assets to meet both parties’ reasonable needs.

What are the benefits of Prenup and Postnup agreements? 

The purpose of a prenup or postnup is for the couple to be able to shape their own arrangements rather than leaving it to the court.  Often this will:

  • support the relationship by providing clarity of each person’s intentions and so reduce tensions during marriage;
  • give early advice so that the couple enter a marriage with their eyes open about its legal implications on their resources;
  • enable them to make informed decisions during the marriage about financial arrangements;

It must be carefully crafted to consider what a judge would find reasonable on any breakdown of the relationship.  Some agreements do not take this into account and so have been unravelled losing the protection of the assets they intended to ringfence, emphasising the importance of advice from experienced specialists like Freeths.

When to consider a prenuptial or postnuptial agreement

The following are some examples of situations for which it is worth at least getting advice from an experienced family solicitor about options including the support a prenup or postnup can give.  

The advice should be taken well before marriage where possible, but otherwise at any time before an anticipated change in circumstances.

How our solicitors can help you?

Our specialist lawyers are always happy to speak to any people in these situations or their advisers to make sure that they have a complete picture and understanding of the options available to them.

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The content of this page is a summary of the law in force at the date of publication and is not exhaustive, nor does it contain definitive advice. Specialist legal advice should be sought in relation to any queries that may arise.

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