Pre-Marital and Post Marital Agreements

When it comes to dividing assets on the breakdown of a marriage, the law in England and Wales is complex, outdated and in many ways not fit for purpose. Decisions made by judges can often seem arbitrary and generally at least one, but often both, parties are unhappy with the outcome.

If a divorcing couple are able to reach an agreement about financial matters then they can present an Order to the Court for judicial approval (known as a “Consent Order”). Usually, a Consent Order will be approved so long as sufficient information is provided for the judge to be satisfied that the arrangements fall within a range of possible outcomes that could have occurred if the matter had been decided by a judge.

Sometimes people reach an agreement about financial matters not because they think the arrangement is fair or reasonable but because they cannot afford to fight their corner at Court or perhaps because thy are too upset by the breakdown of the marriage to go on to have acrimonious proceedings about financial matters.

There is another way you can decide in advance what will happen about financial matters if your marriage subsequently breaks down. If you reach an agreement before you get married it is known as a Pre-Marital, or a “Pre-Nup”. The law in relation to the Pre-Marital Agreements has developed significantly over the last 15 years. Whilst the Court will ways have discretion to review financial agreements on divorce there are a number of practical steps that couples can take to significantly improve the prospects of their agreement being upheld by the Court:

• Both parties should receive independent legal advice about the agreement at the outset.
• Full and frank financial disclosure of both parties’ assets should be made prior to the agreement. Assets should not be hidden, or the value distorted.
• The agreement should be concluded at least 21 days before the marriage.
• Neither party should be under pressure or duress to sign the agreement against their will.
• There should be no significant change which would make the agreement inappropriate (for example, the birth of children).
• The agreement must be fair and realistic. If the division of assets is weighted too heavily in the favour of one party, it may be judged unfair by the courts.
• Prenuptial agreements should be reviewed and amended during the marriage, particularly when any child or children are born and periodically in any event.

In our experience, if parties comply with these requirements then it is very likely that the court will do anything other than enforce the terms of the agreement. Even if an agreement has not been made before marriage, it is possible for a couple to enter into a Post-Martial Agreement that sets out what will happen in relation to the couples’ financial arrangement if the marriage subsequently breaks down. Indeed, it is wise for any Pre-Martial Agreement to be regularly reviewed and when appropriate converted into a Post-Martial Agreement. That means couples’ current circumstances are catered for and there is less chance that the Court will find the Agreement is out of date and so shouldn’t be upheld.

The same considerations apply to same-sex marriage and civil partnerships as well so anyone that is concerned about their financial future should consider a Pre-Martial or Post-Martial Agreement with their partner and take independent legal advice before finalising an agreement.

Nicholson Portnell can advise you about these and other matrimonial matters as well as assess the most appropriate way in which to fund your legal fees.

Contact: Emma Heather, Kathryn McGeary, Janine Calkin or Victoria Waters.