Pre and post nuptial agreements

Pre Nups

Getting married and wondering whether you should include “Pre Nup” on your to do list?

Worried about broaching the subject with your partner in case they are offended?

Don’t worry, you’re not alone.

Pre Nups may not feel like the most romantic start to a marriage, however they are often a great opportunity for couples to be open and honest about their financial situation before getting wed.

Did you know that having a Pre Nup reduces the chances of a marriage ending in divorce?

It’s perhaps unsurprising therefore that couples are increasingly entering into Pre Nups. Most commonly;

  • in 2nd and 3rd marriages;
  • to protect specific assets and/or business interests; and/or
  • to protect future wealth such as inheritance.

Pre Nups are designed to set out what the parties would like the financial outcome to be in the unfortunate event of a divorce. The purpose is to avoid a dispute at a time when discussing such matters is likely to be more difficult because of the relationship breakdown.

Post Nups

Post-nuptial agreements are entered into after the marriage and usually in contemplation of divorce. They too set out what should happen in the unfortunate event that the marriage breaks down and divorce proceedings become inevitable.

In both scenarios, Confidante can advise on the content and legal weight of the agreement as well as the drafting of them.

Podcast

If you are considering a Post Nup – you may also benefit from couples counselling. Listen to Episode 1 of our Podcast series. We talk to a relationship counsellor about the many ways they can help couples to overcome difficulties in their marriage.

Got questions?

A pre nuptial agreement is entered into before the marriage and a post nuptial agreement is entered into after the marriage.

These agreements typically set out what the parties would like the financial outcome to be in the unfortunate event of a divorce.

 

The purpose is to avoid a dispute around what should happen to the finances at a time when discussing such matters is likely to be more difficult because of the relationship breakdown.

Commonly, these agreements are entered into to protect certain assets/income from being included in the division of the finances in the event of a divorce, for example;

 

  • if one of the parties is due to come into money, such as inheritance or other family money;
  • if one of the parties has been married before and wishes to protect the assets secured as part of their first divorce;
  • if one of the parties has a business; or
  • if one of the parties is financially stronger coming into the marriage.

Pre nuptial agreements are often designed to protect certain assets (existing or anticipated) from being taking into account in the context of divorce proceedings.

 

Alternatively, pre nuptial agreements can simply set out what the outcome should be in the unfortunate event of a divorce to avoid an argument at that point.

 

If you consider that you may benefit from a pre nuptial agreement it is sensible to seek legal advice well in advance of the wedding.

Parties in divorce proceedings cannot override the Court's ability to decide how finances should be divided on a divorce. Therefore, neither party can be prevented from applying to the Court for financial provision on divorce. However, when deciding on an appropriate level of financial provision, the Court is likely to give weight to a pre or post nuptial agreement if it is entered into in the right way (explained further below). It is possible therefore that the pre or post nuptial agreement could be determinative.

 

The factors the Court is likely to take into account are;

 

  • Whether or not the agreement was freely entered into.
  • Individual circumstances, such as a party's age, maturity and previous experience of long-term relationships, as well as their emotional state at the time of making the agreement.
  • Whether or not the couple had a full appreciation of the implications of any agreement. It is common to append to the agreement a schedule of the assets (existing and anticipated), liabilities and income and advisable for both parties to obtain legal advice.
  • It must be fair to hold the couple to the agreement in the circumstances at the time of divorce and the agreement should meet the reasonable financial needs of the couple and their children.

 

Additionally in respect of pre nuptial agreements;

 

  • Ideally, a pre nuptial agreement should be finalised at least 28 days before the wedding. This will give enough time to consider the terms and obtain legal advice about those terms, eliminating last-minute pressure as the wedding approaches.
  • Whether or not the marriage would have gone ahead in the absence of a pre nuptial agreement.
family legal services

Hi! I’m Advocate Carly James, a family law specialist in Jersey.

I know how daunting it can be to talk to a family / divorce lawyer and potentially commence a legal process relating to divorce, separation or your children.

If you would like to hear a little more about who we are, whether we would be a good match for you or when we can get started, get in touch and let’s start the conversation.