Whilst most people have heard of a prenup agreement, fewer people have heard of a postnup agreement. Both agreements are similar in content and share the aim to resolve financial and practical difficulties in the event of a future separation as amicable and straightforward as possible.
Prenuptial Agreements are completed before the wedding, and there is clear guidance as to the desired time between the agreement being finalised and the wedding taking place.
Postnuptial Agreements can take place at any time after the wedding and before any separation.
You don’t need a divorce solicitor to help you draft a prenup or a postnup, but it’s advised that you hire one. That’s because nuptial agreements aren’t legally binding, and having one prepared by good family law solicitors increases its chances of being upheld in the event of divorce.
Timing is, therefore, a factor to be considered to determine which nuptial agreement would be preferable, but one can be completed either during the engagement or marriage.
A nuptial agreement is designed to determine how a couple will deal with and separate their finances in the event of a separation and/or a divorce or dissolution.
Traditionally the nuptial agreement will set out how the couple wishes to separate assets that one or both have brought to the marriage—for example, property, investments, or business interests.
Consideration can also be given to future assets received or obtained during the marriage, either individually or as a couple. Examples of these could relate to an inherited gift or a property purchased together as a couple.
Whatever terms the couple agrees will form the starting point for the division of assets if they separate. Whilst nothing can prevent one spouse from trying to override the terms, the nuptial agreement must be considered, and the focus will be on that spouse to persuade the court that the terms should be changed.
In general terms, provided certain guidance has been followed by the couple when the agreement is reached, and the terms agreed are not fundamentally unfair to one spouse, the court will seek to follow the nuptial agreement wherever possible. This gives the couple the best available protection in the event of a separation.
As a nuptial agreement will be completed when the couple is still in a relationship, it makes it much easier to focus on the practical and financial issues to be considered.
Trying to resolve such matters after a separation is much more difficult due to the emotions that both will be experiencing alongside likely major lifestyle changes such as a change of home. This is even more so if the separation has not been a mutual decision made by both spouses.
Choosing to consider and agree on these issues in advance, taking the couples’ specific aims and priorities into account greatly increases the prospects of reaching a fair and amicable agreement.
Terms are agreed between the couple and can be as wide or as narrow as they see fit. The nuptial agreement could deal with just one asset or could set out how the couple wishes to divide all assets and income should they separate. It is an adaptable document that will be tailored to the couples’ needs.
While it is possible to include how they wish to deal with possible future events in a nuptial agreement, no one can see into the future. Something may happen which the couple had not envisaged, or they may feel differently about an event when it does then happen.
Nuptial agreements are flexible as they can be updated as and when the need arises, provided the couple can agree on such amendments. It is common for nuptial agreements to include provision for review and possible updates at specific intervals, for example, every 3-5 years or upon certain events such as having a child. Ultimately whether such terms are included will be the couples’ decision and will form part of the negotiations.
Nuptial agreements can save a couple time, money, and stress.
If a couple separates without having had a nuptial agreement, negotiations will then be necessary. Various factors can make this a very difficult process. In those cases, the only option may be to begin contested court proceedings.
In those circumstances, the matter is unlikely to be resolved for at least 1-2 years, during which time the couple’s lives will often be in limbo.
The costs of such negotiations, and especially court proceedings, will generally be much more expensive than the cost of a nuptial agreement. Finally, the emotional impact and stress that this will have on the couple are far greater than the alternative.
Nuptial agreements are growing in the UK and can be viewed as an option for consideration akin to financial planning advice. Before entering into a nuptial agreement, specific legal advice should be sought to consider the couples’ individual needs and priorities.
The typical argument against prenups is that they are almost a way of tempting fate: you don’t go into a marriage expecting to divorce, so why prepare? The reasons listed above are enough to counter this particular idea.
However, there are reasons why a prenup may not be for you.
So, do you need ‘marriage solicitors near me’? If you are going through a divorce and need help—whether that’s because of an impending court date or because you’re unsure how to separate credit after divorce—talk to Stowe Family Law today. Our family law solicitors have helped thousands of people find their way through complicated divorces.
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