Pre-nuptial agreements are an increasingly popular way for couples to plan their financial futures and intentions before marriage. Although they are not legally binding in England and Wales, they are highly persuasive. If entered into properly, fairly and with the benefit of legal advice in a timely manner before marriage, they are likely to be given decisive weight, if the marriage breaks down in future.

I am often instructed to assist with drafting pre and post-nuptial agreements or PNA’s. They are common for example, where it’s not a first marriage and the individuals wish to preserve assets for children from an earlier relationship, or where there is family wealth that one party wants to protect.

It can be a sensitive subject, particularly for the financially weaker party, if there is a lack of understanding around the PNA and what it can achieve. Critically, there must be full disclosure of each other’s financial circumstances when entering into an agreement to ensure transparency and the agreement must be fair to ensure that if the marriage ends, housing and income needs are properly taken into account. Consideration must also be given to any children or future children, and I always plan for the possibility of a growing family when drafting PNA’s.

Post-nuptial agreements are also a way of setting out intentions on finances if a marriage should end. This is undertaken after the marriage and often accompanies a pre-nuptial agreement where the couple want to re-affirm their intentions should the marriage break down.

Before entering into a pre-nuptial agreement, there are several important factors to consider and understand:

1. Jurisdiction: I always check that the parties live or intend to live in England or Wales. If you intend to live in another country and have no connection with England or Wales, it may be sensible to enter into a PNA in the jurisdiction where you live or intend to live. This agreement should be drafted by a lawyer in that country under those laws.
2. Open communication: Discuss the idea of a pre-nuptial agreement openly and honestly with your partner. It is crucial to have open communication and mutual understanding to ensure both parties are comfortable with the terms and intentions of the agreement.
3. Financial disclosure: Full and accurate financial disclosure is essential. Both parties should provide complete information about their assets, debts, income, and inheritance prospects. This transparency helps ensure fairness.
4. Independent legal advice: It is highly recommended that both parties seek legal advice from separate lawyers. This ensures that each person’s interests are protected, and that the agreement is fair and legally effective.
5. Timing: Start the pre-nuptial agreement process well in advance of the wedding date. Rushing the process may lead to mistakes or potential challenges to the agreement’s validity. It’s generally accepted that an agreement should be signed not less than 28 days prior to the wedding.
6. Content and terms: Understand the content and terms of the pre-nuptial agreement thoroughly. It typically covers issues such as property division, spousal support, debt allocation, and other financial matters. Ensure that the agreement aligns with your expectations and intentions.
7. Future changes: Consider the potential need for updating or modifying the agreement in the future. Life circumstances, such as the birth of children, changes in income, or career advancements, may require adjustments to the agreement.
8. Emotional impact: Recognise that discussing a pre-nuptial agreement can be emotionally challenging. It is essential to approach the conversation with empathy, understanding, and respect for your partner’s feelings.
9. Enforceability: While pre-nuptial agreements are not binding in England and Wales, they are considered highly persuasive. Understanding the legal limitations and potential challenges can help ensure the level to which the agreements will be interpreted in future.

Remember, it is crucial to consult with a qualified lawyer who specialises in family law to guide you through the process and ensure that your rights and interests are protected. Like with most things in life, timing can be the most important factor. The terms that are agreed can play a key role in the future of everyone, so take time over these discussions to ensure that no stone is left unturned before pen goes to paper.