Is now the time to draft or renew your nuptial agreement?

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For many, lockdown has provided an opportunity to catch up with life admin and whilst the pace of life might be starting to pick up again, we still have time to reflect and ensure we have everything in good order. If you have sadly had to delay your wedding, or are married and considering putting in place a post-nuptial agreement to provide you and your spouse with peace of mind, now is a good time to start having the necessary conversations.

The recently reported case of S v H [2020] EWFC B16 acts as a helpful reminder to anyone considering a pre/post nuptial agreement not to leave it to last minute, and to anyone with an agreement already in place, to ensure they are affectively reviewing the same if there has been a change of circumstances or considerable passage of time since it was entered into or last reviewed.

In the above-mentioned case, the Judge found that the parties’ agreement was not valid and therefore should not be taken into account at all when considering the parties financial circumstances on separation. The agreement was entered into just 5 days before their marriage, without any disclosure being exchanged or legal advice being received. Further, as the husband had become bankrupt and was therefore unable to meet his own needs.

We know from earlier cases that when entering into an agreement, it is essential that:

  1. The agreement is entered into freely by both parties, without any pressure from the other or anyone else. The parties to the agreement should feel like they are on an equal footing, freely able to negotiate the agreement and with sufficient time to consider the terms and receive legal advice about the effect of those terms, so that there is no last minute pressure as the wedding day approaches.
  2. In the event that the agreement is signed less than 21 days before the wedding (as in the case mention above), it will be necessary for the parties to review the agreement and sign a post-nuptial agreement confirming the terms of the same after their wedding.
  3. The parties must have a full appreciation of the implications of the agreement before signing the same. This means that both parties need to:
    1. provide each other with disclosure in relation to their financial positions; and
    2. receive independent legal advice about the terms of the agreement to ensure they understand what their financial position would be on separation, in comparison to their partners, and in comparison to how the Court might deal with the assets and income of the parties in the event of a separation without the agreement in place.
  4. It is fair to hold the parties to the agreement in the circumstances prevailing. The agreement will not be considered fair if, for example, it fails to meet the reasonable requirements of any children of the family.

To ensure that the agreement does not fall down at the “fair in the circumstances prevailing” hurdle, it is essential that it is reviewed when there is a change in your circumstances, such as the birth or adoption of a child, or (as in the case mentioned above) a bankruptcy, and every 3-5 years (depending on your ages and how much your lives are changing year to year).

I wonder how the Courts here would judge the review of the Trump Nuptial Agreement, which (it is reported in the new book by Washington Post reporter Mary Jordan) took place before Melania moved into the White House. A significant change in circumstances that required the agreement to be reviewed, certainly. But could the delaying of her move to strength her hand in the negotiations be seen as creating duress?

If you are considering a nuptial agreement? Please view this informative video.

Speak to our family law experts.

If you are considering getting married or entering into a civil partnership and want advice on a pre-nuptial agreement or  you want to review an existing pre or post-nup agreement, our team can help. Please contact one of our Family Lawyers who will be able to assist you with your enquiries.

Please call us on 03456 381381 or email familylaw@ibblaw.co.uk.