Prenup vs Postnup: what is the difference?

With an estimated 42% of marriages and civil partnerships ending in divorce, many couples are considering the benefits of consulting a family solicitor to put a Prenup, or Postnup agreement in place. As well as providing more certainty for both parties, couples may find that taking a pragmatic view of the realities of long-term relationships can help reduce the risk of divorce or separation.

Questions to be answered in this article

What is a nuptial agreement?

Nuptial agreements are contracts that outline how assets and property will be split if a relationship ends in separation or divorce. Without a nuptial agreement, the starting assumption when negotiating the allocation of assets from a marriage or civil partnership is a 50:50 split.

Prenup vs Postnup: what is the difference?

The only difference between the two agreements is that Prenup agreements are entered into before marriage or civil partnership, whereas Postnup agreements are formed afterwards. The content and standing of both agreements are the same.

When should I consider a nuptial agreement?

Nuptial agreements are used where there are assets relating to events prior to a marriage, where the de facto 50:50 split in the event of a divorce, is not the preferred outcome. Examples include:

  • Where the wealth of the parties is not equal.

  • Where there are family businesses involved.

  • Where one of the parties has significant inheritance prospects, or may benefit from gifts from their family.

  • Where there are parties with assets acquired during previous marriages and/or relationships that they would prefer to ring fence, in particular for children of a previous union.

  • When both parties are bringing assets into the marriage, and they both agree that anything acquired prior to the marriage remains the property of that spouse. 

  • Parties with future wealth prospects, such as those with trust funds or careers that could be stellar. 

  • International clients who want a nuptial agreement to mirror one that they have had drawn up in a foreign jurisdiction where such agreements are commonplace.

  •  Where there are existing debts.

Are nuptial agreements legally binding in the UK?

Nuptial agreements are not strictly legally binding, however in the event of a divorce or separation, courts are likely to use them as the basis of making a final decision. In the 2009 case of Radmacher v Granatino the UK Supreme Court ruled:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

Most of the time, the Court will adhere to the terms of a nuptial agreement, unless the effect of the agreement would be manifestly unfair, for example leaving one party unable to meet reasonable housing or living costs.

Can I amend a nuptial agreement at a later date?

Yes! In fact, it is advisable that nuptial agreements are reviewed every few years to check that they take account of the latest situation, for example where there has been a significant change of financial circumstances. If a prenuptial agreement needs to be changed once the couple is married, this will be superseded by a postnuptial agreement.

How can a Goughs help?

At Goughs Solicitors, our Family Solicitors are specialists in preparing and negotiating the terms of both prenuptial and postnuptial agreements. If you wish to set up or check an agreement in order to protect your assets in the event of divorce, our experienced team can provide valuable support. For more information, contact us today for a free 30-minute consultation.

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