A Pre or Post Nuptial Agreement is a legal document that sets out how a married couple’s finances should be dealt with in the event of divorce. Whilst nuptial agreements are not automatically binding in England and Wales, they ought to be upheld up by a court providing the agreement is fair and certain safeguards are met.
The English court has a broad discretion when making financial orders upon divorce. Although it is not possible to oust that discretion, there is a presumption that the court will give effect to a nuptial agreement unless it would not be fair to do so. Whether the agreement is regarded as fair will depend on the specific circumstances of the case.
A nuptial agreement therefore provides an opportunity for couples to come to an agreement either before their wedding or when they are married, setting out what should happen in relation to their finances if the marriage breaks down. However, the court will only likely give effect to a nuptial agreement that meets the ‘fairness test’ and the technical requirements. It is therefore very important that the agreement is properly drafted by a specialist solicitor.