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Gaining popularity over recent years, pre-nuptial and post-nuptial agreements are particularly prevalent amongst those whose wish to protect assets gained before marriage, and limit how they should be distributed in the event of a divorce. Anecdotally, there is suggestion that a higher percentage of same sex couples are considering a pre-nup and to a lesser extent, a post-nup. Here we explain how the two types of agreement work, how they differ, what might make them invalid, and why they might be needed.
Pre-nuptial vs post-nuptial agreements – what is the difference?
Pre-nuptial agreement
More commonly known as “prenups”, they are essentially a contract between a couple prior to marriage, which sets out how their assets should be distributed if they separate or divorce. Prenups can cover anything, from tangible assets such as the family home or jewellery, to intangible ones such as bitcoin. Its primary purpose is to prevent arguments arising from assets becoming ‘mixed’. It does this by setting out what is owned by whom at the outset and demonstrates both parties’ intention to keep such things separate.
Post-nuptial agreement
This agreement is largely the same as a prenup but is entered into when the parties are already married. Post-nups cover all the same types of assets as a prenup, and their primary goal is to avoid assets becoming mixed in the matrimonial pot after marriage.
What is the difference?
Pre-nuptial and post-nuptial agreements are almost identical, the only difference is when they are entered into. A Post-nup can potentially be harder to call into question in the future due to the assumption that the agreement was entered into without the time pressure of a wedding date. It is sensible to commit to a review of both types of agreement every few years, particularly if a material change has occurred, such as children arriving, or an inheritance being received.
If a prenup needs changing following marriage, a postnuptial agreement will supersede it.
Are pre-nuptial agreements legal for same sex couples in the UK?
- The prenup was freely entered into by both parties
- Both parties must understand the implications of the prenup
- The prenup must be fair and not obviously weighted to benefit one spouse
- It must be contractually valid
- It must have been entered into at least 28 days before the wedding took place
- Financial disclosure and exchange should have taken place by both parties
- Both parties must typically have received separate and independent legal advice
- The agreement should not prejudice any children
- The needs of both parties should be met
What might make a prenup invalid?
Things that may make a prenup invalid include:
- One party signing the agreement under duress. When one party feels coerced or cornered into accepting the terms of an agreement, they may argue that it is invalid. Duress may occur where one party refuses to marry the other without them first signing the prenup.
- Misrepresentation – a party has misrepresented certain terms within the agreement that the other party did not find out about until after they married. Or the misrepresentation caused them to act to their detriment.
- Undue influence by a spouse, such as coercion
- Mistake as to the terms of the agreement
- The financial implications of the agreement were demonstrably not fully understood
- Clear unfairness of the terms of the prenup
Typically, a court will attach considerable weight to a prenup providing it has been entered into validly. Unless there has been absolute transparency, a prenup will always be open to challenge.
Why it is important for same sex couples to have a pre-nuptial agreement
Couples in same sex relationships more commonly marry later. If this is you, you may therefore have built up significantly more wealth and assets than someone younger. Entering into a prenup is a sensible step to take, and whilst it may seem unromantic, it can save a lot of heartache further down the road.
How are Pre-Civil Partnership Agreements different?
The financial process and outcomes of a civil partnership dissolution follow the same law as those going through a divorce. Therefore, it follows that pre-civil partnership (pre-cip) agreements do not differ from prenuptial agreements and the same rules apply across the board
What are living together agreements for same sex couples?
A living together agreement, also known as a cohabitation agreement, is a record of what the parties in the relationship have agreed around how to organise and share things with each other and how they will be divided should they split up. This can include things such as payment of bills and who owns what furniture.
Do same sex couples have more to lose when they separate?
According to figures from the Office for National Statistics (ONS), same sex couples are more than twice as likely to get divorced or dissolve civil partnerships than those in opposite sex relationships. Whilst that’s not the most romantic of thoughts for any same sex couple considering marriage, it’s a statistic that might help focus the mind on whether prenup might be worth discussing. Also, as mentioned, if the couple were older when they married they may have more to lose, such as property, good pensions, and savings. Even though the starting point for division of assets on divorce or dissolution of a civil partnership is 50:50, a strict split is not always going to be the case for many reasons. Mitigating factors will usually be the reason for the court to move away from a 50:50 division in favour of the financially weaker party. This can be avoided by setting everything out in a prenuptial agreement.
How much does a pre-nuptial or post-nuptial agreement cost?
The cost for advising and drafting a pre-nuptial agreement varies considerably from solicitor to solicitor and depends on where they are situated in the county. For example, you should expect a City lawyer with a team of family solicitors to be more expensive than a small firm in a local town. Generally speaking, a simple prenup ring-fencing a specific asset such as an inheritance could cost on average around £2,000 plus VAT. More assets will add to the complexity of the document and nature of the work carried out in order to reach agreement. If there are complex assets, it may well be worth spending more now on the most comprehensive prenup you can, than find out later down the line that the agreement insufficiently defines how the assets are to be treated upon divorce and is open to being challenged by your spouse. Additionally, each party will typically instruct separate lawyers, so this also needs to be priced in.
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