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Pre and post-nuptial agreements attempt to protect the parties of a marriage should the relationship later break down. Such agreements can address property, maintenance and child support or children issues. Under English law, this type of agreement is becoming a useful method of financial management, particularly favoured by those who have previously been married and wish to document their financial independence moving forward.
English law does not formally recognise pre and post-nuptial agreements in the same way some other countries do, although this is currently under review. The Law Commission has already announced that it intends to recommend that a “qualifying nuptial agreement” be introduced, which would be binding. For the time being, whilst a pre-nuptial agreement will not be binding on the courts when couples divorce, it plays an important part in the discussions.
English courts must consider a significant number of factors when deciding the distribution of matrimonial assets upon divorce. In recent years, English courts have given pre-nuptial agreements greater weight in a number of cases.
A pre-nuptial agreement is evidence of the parties’ intents at the time they signed it, in contemplation of marriage. The best chance of a pre-nuptial agreement being upheld occurs when the following issues are taken into account within the agreement:
It is clear, however, that an agreed position under a pre and post-nuptial agreement can be a useful starting point should the relationship break down in the future. The English Courts are taking them into consideration.
We have experience of drafting pre and post-nuptial agreements, should this be an area that you are considering. In practice they are not the all or nothing documents frequently reported about celebrity marriages, but are a discrete, considered way to reflect the hopes of both parties on entering into marriage.
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