What are pre-nuptial agreements & post-nuptial agreements?

Pre-nuptial agreements were once confined to the A-listers of Hollywood and the elite upper classes, however we are now seeing more and more couples in Northern Ireland wishing to enter into pre-nuptial agreements before tying the knot.

A pre-nuptial agreement, or ‘pre-nup’ as they are commonly known, is a written agreement between a couple before they get married.

Less common but of equal measure, a post-nuptial agreement is a written agreement between a couple after they have married.

Both types of agreement set out the couple’s joint intention as to what will happen to their property and assets in the event of future separation.  The language used is straightforward and designed to avoid contention in the event of a future irretrievable breakdown of the marriage.  The agreement will include a list of the assets owned solely and jointly by the couple prior to the marriage, the market value of those assets, how those assets will be divided between the couple in the event of separation or divorce in particular circumstances, the protection of future inheritance, and ring-fencing provisions for any child or children of the family.

Historically, the Courts were resistant to entertaining pre-nups, considering them contrary to public policy, but following three seminal cases in 1997, 2002, and 2010; the latter of which was heard in the Supreme Court (Radmacher v Granatino [2010] UKSC 42), the judicial approach has gradually changed so that a husband and wife will both be bound by the terms of their pre-nup unless it would be unfair to do so.

Today, pre-nups can be enforceable in the event of separation and divorce and they are considered good evidence of the parties’ joint intention and understanding going into the marriage.  A couple will usually be bound by what they have agreed in a pre-nup as long as the following criteria are met:

• The agreement is in writing;
• The couple each received separate and independent legal advice;
• The couple provided full financial disclosure before entering into the agreement;
• The terms are fair in the circumstances;
• The needs of any children of the family/marriage are not prejudiced;
• There was a sufficient period of time between the signing of the pre-nup and the wedding;
• Neither party was under duress or undue influence i.e. it was a free and willing agreement.

Great heed must therefore be taken by the solicitor when drafting pre-nups and it is absolutely necessary for the couple to both receive separate and independent legal advice.

A pre-nup, whilst by no means a romantic endeavour, does not signify a lack of trust or love between a couple, despite society’s opinion remaining largely uncomplimentary.  Pre-nups can be a very useful and practical tool to protect wealth, to afford the couple (and often their respective families) certainty in their future together, and to minimise conflict and suspicion in the event of the marriage breaking down irretrievably.

Pre-nups are especially relevant for those couples where one person happens to be bringing wealth into the marriage, perhaps in the form of a business interest, a previous gift or inheritance from a relative, or from owning or expecting to one day own an inter-generational family farm or business.

However, these agreements are not to be abused and they are not absolute.  Courts have a statutory power to vary pre-nuptial and post-nuptial agreements. Pursuant to Article 26(1) of the Matrimonial Causes Order (Northern Ireland) 1978, Courts will take into account any circumstances arising from the marriage which cannot be disregarded in the interests of achieving fairness under the law.  Therefore, if a Court deems the terms of a pre-nup to be far removed from what would be fair under matrimonial law, perhaps due to a stark change of circumstances endured by one of the couple, the birth of children during the marriage, or inequitable conduct by one of the couple, the Court will act accordingly.

A pre-nuptial agreement can be replaced by a post-nuptial agreement and it is sensible practice for a couple to review their arrangements during their years of marriage as part of wider wealth planning, not dissimilar to reviewing one’s Will.

For further information regarding pre-nuptial agreements and post-nuptial agreements, please contact our Family & Matrimonial Associate, Ryan Elliott. Find out more about our Family & Matrimonial services here.

This article has been produced for general information purposes and further advice should be sought from a professional advisor.