Pre-Nups and Post-Nups: What are they and are they legally binding?
Most of us are familiar with the idea of a financial arrangement entered into before marriage, commonly known as a pre-nuptial agreement or “pre-nup”. But what about a “post-nup”? This article describes both and explains the big recent news.
Pre-nuptial agreements
Nuptial is (more or less) Latin for marriage. A pre-nuptial agreement is a written arrangement made between fiancés before the big day, describing how the happy couple’s money and property should be split in the event of a downturn in affection and divorce.
Everything in this article applies equally to civil partners.
Pre-nups were once primarily in the realm of the rich and famous (particularly in America), and have been considered a bit like “tempting fate” (much like making a Will is wrongly thought to be morbid). But these days more “ordinary” people are considering pre-nups, because even with the best intentions marriages do often end in protracted and painful splits.
Marriage
Is a pre-nup binding?
In divorce cases in England and Wales the judge must consider all relevant circumstances, including a well-drafted, properly executed pre-nuptial agreement. And following a divorce case in 2008 called Crossley v Crossley, there is now a belief, rather than a mere hope, that a proper pre-nup will be enforced.
Nevertheless, pre-nups in this country are not legally binding. So even though there is a very good chance a well-drafted pre-nup will be considered, and probably enforced, there are still no guarantees.
This is different (by the way) from America and much of Europe, where pre-nups are binding. There are calls for Britain to go the same way, and change may be on the cards. Many think that one day a visit to a solicitor prior to marriage will one day be as common as visiting a clergyman! Check back to Law Chat to see how things develop.
What about post-nuptial agreements?
A post-nuptial agreement or “post-nup” is an arrangement made by a couple during their marriage. Apart from the date when is made, it is basically the same as a pre-nup.
The big news is that properly made post-nups are now legally binding. This is the result of a case involving a businessman Roderick MacLeod and his wife Marcia, who made both a pre-nup and a post-nup. Senior judges said just a few weeks ago (December 2008) that the post-nup made by the couple on their wedding day should be enforced.
As a result, post-nups are now a safe bet, and will doubtless increase in popularity. And the same goes for a pre-nup that is varied during marriage to take account of the couple’s up-to-date circumstances.
It is a good idea to draft a post-nup fairly soon after marriage, for example on return from honeymoon. As time drags on, it may become more difficult to broach the subject and there may seem to be less reason.
Picking up confetti
Who benefits from a pre-nup or a post-nup?
The aim of pre-nups and post-nups is to avoid acrimonious, expensive and long-winded divorces. If the agreement is upheld, the whole process could be over very quickly, to the benefit of all (including any children of the marriage). What a shame for Paul McCartney that he and Heather didn’t bother.
Many people may benefit from a pre-nup or post-nup, including the following:
- Previous divorcees who suffered acrimonious break-ups and do not want to make the same mistake twice. They may also want to provide fully for the children of their first marriage;
- Anyone who wants to take control over their assets during divorce and wants to avoid potentially costly and lengthy disputes (this may apply particularly to couples of medium or high wealth, and to those younger people whose wealth is increasing);
- Couples with a big disparity in personal wealth;
- Businesspeople who are used to binding agreements in their every-day lives;
- International clients used to having a pre-nuptial agreement in their home country; and
- Gay and lesbian clients who may have cohabited for years and are entering into a civil partnership.
Summary
| Also known as | Made | Legally binding? | |
| Pre-nuptial agreement | Pre-nup; antenup; financial arrangement before marriage | Before marriage | A proper pre-nup will be considered and very probably enforced, but it is not legally binding so there are no guarantees |
| Post-nuptial agreement | Post-nup; financial arrangement during marriage | During marriage | Yes – a post-nup is legally binding |
How to make a pre-nup or a post-nup
Both pre-nups and post-nups have certain requirements and should be drafted by solicitors to ensure they will be valid. Even though pre-nups are not yet binding, a well-drafted pre-nup will stand a good chance of being enforced.
If you would like advice on pre-nups or post-nups and/or would like to discuss drafting such an agreement, please get in touch with Winston Solicitors LLP. If you have any questions or experiences in this field please feel free to use the comment form below.
