28th February 2020
Pre-Nups and Pos-Nups have been the topic of the first few episodes of series 2 of The Split, a high-paced divorce law drama on the BBC.
Whilst many aspects of the TV drama are purely for dramatic effect and leave some real-life divorce lawyers squirming from the other side of the screen, some parts of the story lines do ring true and highlight the importance of seeking professional legal advice before entering into such agreements.
Back after a successful series 1 which was aired in 2018, the new series follows regarded divorce lawyer Hannah Stern juggle her own family problems whilst trying to help an array of elaborate and high-profile clients.
In the first couple of episodes Hannah sees a celebrity client who entered into a very questionable pre-nuptial agreement years ago and is now feeling trapped in an emotionally abusive relationship. Another client of Hannah’s is a high-net-worth mother concerned for her son (and heir to the family fortune) who has married a fellow patient he has met after 12 weeks in rehab.
Without revealing any spoilers for those who are yet to catch up on the TV Drama, both clients are clearly in need of stringent legal advice.
A prenuptial agreement, or pre-nup for short, is an agreement entered into by a couple prior to marriage or civil partnership that sets out what would happen to their finances and assets such as property in the event of their relationship ending.
Once thought of as only for the super-wealthy or high profile, they are actually becoming increasingly popular as the dynamics of society and relationships change. Many people are marrying later in life having accumulated their own assets or are getting married for a second or third time and are looking for some financial security in the event of a divorce.
They can provide peace of mind and understanding for both parties.
In short, yes.
A pre-nuptial agreement is a legal document which should be considered very carefully with your own independent legal advice before it is signed. It can also make the document valid should it need to be used during separation discussions or in court.
English law has a complex approach to pre-nups but with the increased popularity of these agreements, courts are recognising pre-nuptial agreements and enforcing the terms when it comes to divorce. As long as the agreement is legally-sound, entered into fairly and financial needs are met, then they can be legally binding.
The courts are still able to exercise their discretion; therefore, it is important that documents are drafted correctly by specialist family solicitors and that both parties seek legal advice.
If a court deems a pre-nuptial agreement unfair to any children or believes that it has been unfairly entered into, for example one party was ‘forced’ into signing the agreement or signed the pre-nup when they were not of sound mind, then they could be dismissed by a judge and the courts would then determine how finances were split.
There are also other factors that will make the pre-nuptial agreement valid and legally binding. It must be entered into at least 28 days before the wedding or civil partnership, it must meet the basic needs of the spouse and any children, and full financial disclosure should be given before an agreement is signed.
If you have left it too late to draft a pre-nuptial agreement before your wedding, or have decided that once already wed that you would like the protection and reassurance of a pre-nuptial agreement then it is possible to opt for a post-nuptial agreement instead.
A post-nup is very similar to a pre-nup, the only difference is timing. They still must follow all the above guidance to make them legally binding and both parties must seek their own legal advice.
There are templates and cheap documents online that occasionally lure in a couple looking to protect their assets, but if you are serious about protecting your financial position then most people understand that these documents are not worth the paper they are written on.
As we have covered, there are certain factors that will make a pre-nuptial or post-nuptial agreement stand up in court, which a ‘DIY’ agreement is very unlikely to do.
Both parties need to seek legal advice from a family lawyer, and you would struggle to find a reputable solicitor who would agree to work with a couple using a template agreement.
With the absence of legal advice, lack of evidence of such documents being signed freely and without duress, lack of financial disclosure and guidance, a DIY agreement is not going to stand up in court if it needs to be used.
If you are looking for independent legal advice before entering into a pre-nuptial agreement or a post-nuptial agreement then our Family Law Team at Lamb Brooks are here to guide you through the process, ensure you fully understand the terms and make certain that the document is fair and reasonable.
If you are getting married or entering into a civil partnership and are considering the benefits of a pre-nuptial agreement between you and your partner then speaking to an expert family lawyer is the first step to getting an agreement in place that provide you with clear and concise advice for the future, should it be required.
Contact us today on 01256 844888, email email@example.com or speak to our online chat assistant who is available 24/7 should you want to make contact when our offices are closed.
We hope we can help protect your interests and give you a sensible start to your marriage.
More information on Pre-Nuptial Agreements
More information on getting re-married and protecting your assets / children
Could a Pre-Nup Save Your Marriage?
Re-Marrying Over 50: Protect your Heart and your Assets
5 Things you Need to Know if you are Living Together
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