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Pre & Post Nuptial Agreements

Family Law

Pre-nuptial agreements are becoming more common. They are not just for the rich or celebrity couples and if you are contemplating getting married or entering into a civil partnership you should consider whether or not you need one.

A pre-nuptial agreement is sensible financial planning and helps to avoid upset and expensive court proceedings in the event of relationship breakdown. Our Family Law team available at our offices in Ashford, Canterbury and Herne Bay to offer you advice in this area.

You can also choose to enter into a post nuptial agreement after you have married or entered into a civil partnership however, if you have not yet married or entered your civil partnership, we would advise you to proceed with a pre-nuptial agreement without delay.

At the present time, pre-nuptial agreements are not legally binding in a court of England and Wales but they can be taken into account by a court should the relationship break down. There are steps you can take to ensure your pre-nuptial agreement is upheld and to preserve financial assets should your marriage or civil partnership breakdown.

How to ensure your pre-nuptial agreement is upheld:

Obtain independent legal advice – It is strongly recommended that each party to the agreement obtains independent legal advice prior to signing. This helps to show that you both understood the implications of the agreement when entering into it.

Full and frank disclosure – The parties should exchange full and frank disclosure of their assets and income. This helps to show that you were both fully aware of the financial implications of the agreement. However, it should be noted that even where one party is indifferent to the particular details of the other party’s assets and does not therefore insist upon full disclosure, the agreement may be given reduced weight by the court because there was not full disclosure.

Avoid allegations of duress or undue influence – The agreement must be entered into freely by both of you and there should be no evidence of duress or undue pressure before entering into the agreement. A usual safeguard against allegations of duress or undue pressure is that pre-nuptial agreements should be entered into at least 28 days before the marriage or civil partnership.

Ensure the agreement is realistic and fair – If the pre-nuptial is weighted too far in favour of one person, there is less chance of it being upheld by the court on divorce.

For further advice, please contact a member of our Family Law team based in Canterbury, Ashford and Herne Bay.


Our Experts

Gemma Purt

Head of Department
Family Law

Anisha Teelwah

Senior Associate Solicitor
Family Law

Joanna Lawrence

Senior Associate Solicitor
Family Law

Curtis Wray

Associate Solicitor
Family Law

Megan Mahesan

Associate Solicitor
Family Law

Katherine Cusack

Family Law

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Can you ensure that the court upholds my pre-nuptial agreement?

Unfortunately, pre-nuptial agreements are not legally binding, but courts can take them into account. An agreement that was fair when entered into may not be fair at the time that that the parties to the agreement separate. The court will not uphold an agreement that they believe to be inherently unfair at the point of separation.

What are the advantages of a pre-nuptial agreement?

These include:

  • Helps to avoid the potential for animosity between the parties
  • Enables the protection of assets already owned by one party before the relationship commenced or that are likely to be received in the future, such as inheritance
  • Enables assets to be preserved for the benefit of children from a previous relationship
  • Avoids significant legal costs being incurred upon separation.

Often, when a relationship comes to an end, the added burden of deciding how to divide assets can create further tension in an already potentially acrimonious situation.

Having a pre-nuptial agreement in place allows for each party to know how martial and non-marital assets will be separated and divided between the parties upon separation. As such, it allows for the division of assets to be decided at a time when both parties had clear minds about how they would wish for their assets to be proportioned upon separation without having to make such decision with the background of a potentially acrimonious separation.