Pre-Nups and Post-Nups – What’s the Difference?

Pre-nuptial and post-nuptial agreements are legal contracts drawn up between a couple either before or after they are married. Nuptial agreements can sometimes cause confusion: before deciding on one, it is important to understand how they differ and what impact they will have if you decide to separate or divorce. This article will provide an overview of nuptial agreements and how the courts will consider them when making a financial order. 

A pre-nuptial agreement is also commonly referred to as a pre-marital agreement. This type of legal agreement is entered into by a couple before the marriage occurs. The agreement sets out how a couple plans to divide their assets in the event of divorce or separation.

Pre-nuptial agreements can also contain information about how the couple currently arrange their finances and how they plan to arrange their finances during the marriage.

A post-nuptial agreement is a legal agreement made between two individuals who are already married. Like a pre-nuptial agreement, the agreement will usually detail how the couple would like to divide their assets if they later divorce or separate. Post-nuptial agreements can also outline how the couple currently arrange their finances and how this may continue or change during the marriage.

Since the ruling of the landmark case in Radmacher v Granatino [2010], it has been clarified by the Supreme Court that there is no difference in the legal status of pre-nuptial and post-nuptial agreements, and both are capable of being legal contracts and should not be treated differently. The only difference between them is that you enter into a pre-nuptial agreement before the marriage and a post-nuptial agreement after you are married.

Nuptial agreements are not yet binding. This means that if a couple separates and they have a nuptial agreement in place, the parties to a nuptial agreement cannot override the court’s discretion about how to redistribute their assets and income when making an application for a financial remedy.

However, when considering an application for financial remedy, the court must ensure they give the appropriate weight to the nuptial agreement as a relevant factor in the case when considering making a financial order.

At present, depending on the circumstances of the case, the nuptial agreement may be given decisive weight if it satisfies the legal test set out in Radmancher v Grantino, which includes the requirement that both parties entered into the agreement freely and with full appreciation of its legal and financial implications.

If you would like legal advice on or any further information about nuptial agreements, please get in touch with friendly solicitors from our the family department on 020 7228 0017.