Nuptial agreements

A nuptial agreement is an agreement between two parties setting out what should happen to their financial affairs if they divorce. This generally includes the division of the parties’ assets, as well as any provision for spousal or child maintenance. The agreement may be made prior to the marriage (pre-nuptial or ante-nuptial) or afterwards (post-nuptial or post-marital).

Nuptial agreements are not absolutely binding but following Ayesha Vardag’s landmark victory in Radmacher v Granatino, the court will give effect to a nuptial agreement provided it was “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement." In assessing this, the court will consider various factors such as the needs and personal circumstances of the parties, whether they received independent legal advice, and any pressure subjected to either party.

To maximise the chances of a nuptial agreement being upheld, it is important that a solicitor drafts it. Nuptial agreements can be complex, and key terms should be clearly defined. Attempting to draft one without being legally qualified is therefore risky.

In some circumstances, parties may wish to review or change their nuptial agreement, for example, following the birth of children. When changing or updating a nuptial agreement, the same care should be taken as when a new agreement is drafted. Informal or verbal agreements to depart from a nuptial agreement will be more difficult to rely upon in court.

If you are considering entering into a nuptial agreement, or need advice about an existing agreement, contact Vardags today for a free consultation with one of our expert divorce solicitors.

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