Do I need a nuptial agreement?

David Connor, director and family law specialist based in WHN’s Rawtenstall office, explains why some couples may consider entering into a nuptial agreement as part of their commitment to getting married.

What is a nuptial agreement?

A nuptial agreement is a formal written agreement to enable couples to agree how to deal with assets gained during their time together, should their marriage break down in the future.

The agreement can also provide for child and/or spousal maintenance and can also outline an agreed pension splitting.

A nuptial agreement can be made before a marriage in which case it is called a prenuptial agreement, commonly referred to as a pre-nup. You can learn more about prenuptial agreements on our dedicated website page.

If the agreement is drawn up after the marriage, it is called a postnuptial agreement. Much like a pre-nup, a postnuptial agreement is a formal, written agreement which allows individuals to determine how to settle issues relating to financial assets without the need to go to court, should their marriage fail. You can learn more about postnuptial agreements in our blog post: Why a postnuptial agreement is right for you.

The idea behind preparing a nuptial is to avoid the need for couples to resort to court proceedings if a marriage breaks down. A nuptial may be seen as ‘unromantic’, but it can help reduce the risk of unnecessary conflict should a married couple seek divorce, or the marriage fails.

What provisions can a nuptial cover?

A nuptial agreement is very useful where one or both parties have inherited wealth and/or have children from a previous relationship. The agreement can ensure that certain assets owned by one partner are ringfenced and thus not available for sharing.

This means that provision can be made for individuals to retain personally owned properties, individual savings, any expected inheritances, and possessions including valuable items and jewellery. It can also have the provision for an individual to retain a business interest in their family business.

Understanding your commitment and rights when entering a nuptial agreement

The courts will uphold nuptial agreements if the expected formalities have been complied with and the agreement is seen as fair. However, they are not automatically binding upon both parties. They must be entered into freely and willingly by both parties without duress and with full appreciation of the implications.

Nuptial agreements can often provide a different outcome than in the courts and therefore it is important that people understand the rights they may be acquiring or losing in the process.

The documents are complex in nature, should be drawn up by a solicitor and ideally with both parties having separate legal advice in the process. In taking advice at an early stage, you can have the freedom to agree your own terms of separation without the court imposing a solution upon you.

This could protect your family business, minimise acrimony on divorce and ultimately it may save you money at the point of separation.

In what circumstances is a different agreement required?

It is important to note that a nuptial agreement provides for protecting assets in a relationship breakdown and does not specifically deal with provision on death where the couple may have still been happily married.

It is strongly recommended for couples intending to draw up a prenuptial or seeking to prepare a postnuptial agreement to review their wills at the same time and check the provision for the other party in their wills is sufficient. It is then important to review both documents should any circumstance change for either party.

It is also important to recognise that different and complex rules apply to couples who live together but do not plan to marry, as nuptials are designed to protect married couples or couples intending to get married. It is possible to put together a ‘living together’ agreement to work in a similar way to a prenuptial agreement, however, the law relating to unmarried separating couples is very different to that for divorcing couples. To find out more see our related blog post that provides further information.

Specialising in all areas of family law, David represents individuals seeking to resolve family law matters either by agreement or where necessary, through court proceedings. If you are planning to marry or are married and wish to discuss preparing a nuptial agreement, contact David on 01706 225621 or email [email protected]