Pre and post-nuptial agreements: the benefits and good practice

Sponsored feature | Roopa Ahluwalia, partner, HCR Hewitsons

A pre-nuptial agreement can give both parties control over the outcome of a financial settlement on divorce, with a clear roadmap to follow in the event of separation.

This in-built sense of clarity will helpfully overcome the issues that many parties face during the uncertainty of divorce and associated financial outcomes. Such documents also provide clarity for children’s matters, making the process as simple as possible and with as little acrimony as possible, preserving the ability of both parties to co-parent in the future.

A pre-nuptial agreement can set out not only the distribution of assets on separation, but also be very clear about where issues will be resolved and how any disputes that may arise could be dissolved – for example through mediation or arbitration.

What the court expects

There are some basic expectations any court will have when looking at following a pre-nuptial agreement. While a pre-nuptial agreement isn’t legally binding, it is accurate to say that courts increasingly look at the existence of one for divorcing couples. If it is drawn up in a recognised way and meets certain criteria, they will look at the overall fairness and whether it would be suitable to abide by the terms laid out in it.

To this extent, it is essential that anybody considering either a pre or post-nuptial agreement obtains advice from a specialist family lawyer who specialises in these.

Good practice

Good practice would be to have a pre-nuptial agreement to be drawn up one month before any marriage date. There should be full disclosure of both parties’ financial circumstances and the agreement must be deemed to be fair overall. One of the key factors that must be addressed is that both parties have entered into the preparation of the agreement without pressure.

Pre-nuptial agreements can be as detailed as you wish for them to be. However, they should be treated as documents that you regularly review, such as a will, to ensure that your future planning is as accurate as possible. After all, the idea is that in communicating and agreeing what you want to see as an outcome, you have done the hard work and preserved goodwill between yourself and your former partner.

There is also the financial perspective: the cost of a pre-nuptial agreement and any reviews is likely to be far less than any expensive protracted litigation.

For more information, contact Roopa Ahluwalia, partner, head of family, at the Cambridge office on 01223 447472, 07825 375486 or rahluwalia@hcrlaw.com.

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