Couples getting married might want to record what happens if their relationship breaks down. They can do so by signing a pre-nuptial agreement.

Although this document is not binding on the court, courts are taking them into account when considering how finances should be distributed following the breakdown of the marriage.

To ensure that a pre-nuptial agreement will be considered seriously by the Court the following guidelines should be adhered to;

• it must be signed by both parties at least 21 days before the wedding. Therefore, ensure that your solicitor has sufficient time to take clear instructions and receive all disclosure to present to the other party.
• both parties must provide full financial disclosure
• both parties must enter the agreement voluntarily, with no undue influence

Preferably both parties will also take independent legal advice on the contents of the document.

With hectic wedding plans you might not have had time to deal with a pre-nuptial agreement before the wedding. If this is the case you can enter into a post-nuptial agreement recording your agreement should the relationship fail following your marriage.

Frequently asked questions and experiences from existing cases:-

Are Prenuptials / Post-nuptials legally binding?

Judges in England and Wales can take the terms of any agreements into account but, they are not legally bound to enforce the terms of an agreement. In some US and European countries these documents are enforceable.

The Law Commission is due to report in 2012 on whether a change in the law should be made to ensure pre-nuptial / post-nuptial agreements are enforceable. With this and the judgment given in Radmacher v Granatino (2010) more weight may be given to these agreements.

Who should set up a Prenuptial / Postnuptial?

Any couple can set up a prenuptial before their wedding, but in practice it is the wealthy, with more to lose, who are likely to take steps to ringfence their assets. With couples increasingly marrying later in life, and many entering second marriages, there are likely to be more assets which a party may wish to protect should their relationship irretrievable break down.

It's not too late once married, as post-nuptials are also increasingly popular and will act to continue to reflect parties intentions.

Will my Prenuptial / Postnuptial agreement last for life?

In all cases we would advise parties to ensure that they regular review prenuptial and postnuptial agreements to ensure they reflect a considered division of assets in light of unexpected changes which may not be provided for within the original document.

All though provisions can be made within your initial agreement to provide for future events such as, the birth of a child. It is essential that you ensure that this event does not alter your intentions. If there is a material change to an individuals' financial contribution or this event limits an individuals' ability to contribute to a Pension, particularly if they are taking a break from employment, does the agreement need to be reviewed? In these situations there should be clear documentation that the parties have considered these factors and reviewed their agreement.

Can individuals in a civil partnership have one?

Yes, increasingly partners entering into civil partnerships are making prenuptial and postnuptial arrangements.

What must be included?

All assets need to be valued before the agreement is drawn up. Individuals can make their own estimates of business interests but we advise people to obtain an official valuation from an accountant.

What happens when children come along?

Prenuptials and post-nuptials can take into consideration arrangements for any offspring that may come along before a marriage breaks up but it is advisable for you to regularly review any agreement especially when an offspring comes along or there is a significant change in your personal circumstances.

What are the pitfalls?

Prenuptial and postnuptials must be freely entered into. Prenuptials should be drawn up well in advance of a wedding, to ensure they have the best chance of being accepted in court.

It takes time to value all assets, especially if some assets are held outside the jurisdiction and further expert advice may need to be obtained for these assets. The paperwork should be signed at least 21 days before the big day. If it is signed just the day before, it can look like one spouse was forced into the agreement, having been given little chance to check their legal position.

How does the decision in Radmacher v Granatino [2010] UKSC 42 affect me?

The Supreme Court Ruling gives prenuptial agreements a greater recognition in English law. Thus providing more weight to the contents of a prenuptial agreement assuming it has been correctly drafted but it is considered as only one of the factors when determining the distribution of matrimonial assets.

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