Nuptial agreements – protection of assets

A nuptial agreement is one that is entered into by a couple with the purpose of outlining how their assets are to be divided in the event of their marriage breaking down.

Assets owned by the couple, and covered by a nuptial agreement, are often distinguished in two categories: matrimonial assets, and non-matrimonial assets. Matrimonial assets include, for example, assets obtained during the marriage or joint assets. In contrast, non-matrimonial assets may include things like inherited assets and assets owned prior to the marriage.

It is usually very important to individuals that their assets are protected in the unfortunate event of divorce. The hope is, of course, that any nuptial agreement prepared will sit dormant (subject to review following defined events). However, should the document be needed on marital breakdown, it can be a very important asset protection tool.

What is the difference between a pre-nuptial agreement and post-nuptial agreement?

A pre-nuptial agreement is one that is entered into prior to marriage, whilst a post-nuptial agreement is entered into after a couple is already married. Both address how assets should be divided should the marriage come to an end and provide the security of their agreement in writing.

Are nuptial agreements legally binding?

There is currently no legislation in place to automatically make nuptial agreements legally binding. Ultimately, the court is still able to exercise its discretion when it comes to financial remedy – it isn’t guaranteed that the terms of any nuptial agreement will be upheld. However, case law suggests that nuptial agreements that satisfy certain criteria should be upheld by the court.

In the key case of Radmacher v Granatino, the Supreme Court considered to what extent nuptial agreements should be given weight. It was concluded that effect should be given to a nuptial agreement provided it was entered into freely, with an appreciation of the implications, and that it would not be unfair to hold the parties to the agreement.

There are certain criteria that a nuptial agreement should satisfy to be a qualifying nuptial agreement, including:

• Being contractually valid and executed as a deed
• Both parties receiving disclosure of all material information from the other
• Any pre-nuptial agreement being signed more than 28 days immediately before the wedding or civil ceremony
• The parties each obtaining independent legal advice.

There are other ways to strengthen the position of a nuptial agreement, such as reviewing the document following certain events as defined in the agreement; the birth of a child, for example. This is important as what was fair at the time of the agreement being made may have changed by the time of review.

It is also possible for a couple to sign a pre-nuptial agreement and then a post-nuptial agreement. This should happen ideally within 28 days of becoming married. The terms of the post-nuptial agreement would usually be the same as the pre-nuptial agreement. This provides additional protection for the parties and their assets.

Why should I consider a nuptial agreement?

The key reason for considering a nuptial agreement is to protect your assets. Whilst, as we have explored in this article, a nuptial agreement isn’t automatically legally binding, it is something that the court will look at as a relevant circumstance when considering financial remedy proceedings. Should the above criteria be present it is likely that the agreement will be upheld. A nuptial agreement therefore provides additional protection for those couples that have entered into one and is a sensible precaution to take.