Introduction  

Whilst it is always hoped and expected that your marriage will last a lifetime, sometimes, these wishes are not fulfilled. In the event of this, and to avoid litigation, it is sometimes a preference for both parties to sign an agreement for what you both agree to be a fair division of finances.   

Pre-nuptial (before marriage) and post-nuptial (after marriage) highlight how a couple will divide their assets if their marriage dissolves. The purpose of these agreements is to promote and enhance the marriage rather than facilitate its breakdown and are typically used when one party already has significant assets or a large estate.  

Unlike pre-nuptials, which are generally considered valid upon marriage, a post-nuptial will be scrutinised by the courts before they decide whether or not it is enforceable.  

Both agreements must be entered into freely, and both parties must have full appreciation of the implications of the agreement. It must also be fair to hold the parties to the agreement in the circumstances prevailing.  

Advantages

Clarity & Certainty 

Assets and finances can be divided between yourself and your partner before marriage to ensure they remain solely independent. This will prevent unwanted litigation on any subsequent divorce. 

Transparency  

Engaging in financial disclosure at the beginning of the marriage provides an opportunity to both know the approximate value of each other’s assets.  

Protection of Assets & Family Members 

There may be certain assets which you wish you protect, for instance, either inherited or sentimental gifts. Setting these out early prevents them becoming the subject of financial claims by your spouse in the future.  

Additionally, if you have children from a previous marriage and wish to ringfence certain assets for their future, this can be outlined in this agreement.  

Disadvantages

Not legally binding  

Whilst both l agreements are not currently binding in law, they have been entered into freely at the time by both parties therefore, the courts are likely to uphold such agreement at the time of a future divorce. The only exception to this would be if the court determines that the agreement is ‘unfair’. 

Does not account for changes in circumstances 

A pre-nuptial agreement cannot predict what will happen during the marriage and significant changes in circumstances may occur. Should such changes occur, the agreement not relating to those changes will lose relevance and is unlikely to be upheld.  

Bad Timing 

Preparing for a marriage is stressful, and the added consideration of financial and asset related issues is not something most people wish to be considering. Individuals might be reluctant to discuss the potential failures of their relationship at a time where they are supposed to be celebrating their love. 

Final Thoughts 

Whilst both pre-nuptials and post- nuptials can be found valid and enforceable during a divorce, some experts believe a prenuptial agreement is often the most straightforward as it is made before the couple’s assets are combined.  

Despite this, it has been held that post-nuptial agreements are better than no agreement at all, especially in situations where this is not the first marriage of either one or both of the parties, and there are sizeable assets to consider. 

Further Information 

George Green LLP’s Family Law department regularly advise clients as to the benefits of pre or post nuptial agreements, their legal status and their likely effect should the marriage sadly break down. 

If you wish to book in for an initial consultation to discuss a either agreement, our family solicitors are based in both Wolverhampton and Cradley Heath and serve clients across the West Midlands. For all new enquiries, please call 01902 328 355 or complete our online enquiry form and a member of our team will respond.