Pre and post-nuptial agreements attempt to protect the parties of a marriage should the relationship later break down, Such agreements can address property, maintenance and child support or children issues. Under English law, this type of agreement is becoming a useful method of financial management, particularly favoured by those who have previously been married or where one party has greater wealth than the other, which that party would wish to ring-fence in the event of the marriage later breaking down.

English law does not formally recognise pre and post-nuptial agreements in the same way some other countries do, although this is currently under review.  The Law Commission has already announced that it intends to recommend that a “qualifying nuptial agreement” be introduced, which would be binding. For the time being, whilst a pre-nuptial agreement will not be binding on the courts when couples divorce, it plays an important part in the discussions.

English courts must consider a significant number of factors when deciding the distribution of matrimonial assets upon divorce.  In recent years, English courts have given pre-nuptial agreements greater weight and are  becoming far more willing to hold parties to these agreements.

A pre-nuptial agreement is evidence of the parties’ intentions at the time they signed it in contemplation of marriage. The best chance of a pre-nuptial agreement being upheld occurs when the following issues are taken into account within the agreement:

• The agreement must be voluntary – neither party should feel pressured into entering into the agreement;
• Both parties need to be separately and independently advised by a lawyer;
• Both parties must disclose their financial assets and liabilities in a full, frank and honest manner;
• The pre-nuptial agreement should be entered into some time before the marriage takes place – at least six weeks prior to the marriage as a general guideline; and
• The agreement must be fair or it is unlikely to be upheld. Certain changes of circumstances, such as children, may result in a change in the application of the agreement.