Pre-Nuptial and Post-Nuptial Agreements

A Prenuptial Agreement is a formal written agreement signed by a couple prior to the marriage ceremony, confirming what will happen to their respective assets in the event of the breakdown of their marriage.

A Postnuptial Agreement is for a couple who are already married and confirms what will happen to their respective assets in the event of the breakdown of their marriage. It can also serve to confirm the terms of a prenuptial agreement previously established by the couple before marriage.

These agreements are not automatically legally binding.

A significant shift in the law occurred with the 2010 Supreme Court Judgment in the case of Radmacher and Granatino, which examined the status of pre-nuptial and post-nuptial agreements. This case signalled a shift towards the acceptance of such agreements and their enforceability. In this case, the Supreme Court ruled that although prenuptial and postnuptial agreements are not inherently binding, there is now a 'presumption' in their favour, provided that each party possesses full knowledge of its implications and there is disclosure of the parties’ respective assets. Essentially, this means that a court will typically uphold such an agreement, unless one spouse can prove that enforcing it would be unjust.

Independent legal advice for both parties before signing is essential if a Court is to be asked to recognise and enforce such an agreement.

In the event that such an agreement is challenged, the burden will typically fall on the party seeking to overturn the agreement to persuade the court that its terms should not be upheld. Such a challenge will most likely be that it would be manifestly unfair to uphold its terms in view of the reasonable needs and resources of that party or any dependent children of the marriage.

Pre-nuptial and post-nuptial agreements are applicable only to married couples, as they are based on the institution of marriage. Unmarried couples do not fall under the purview of such agreements; however a cohabitation agreement could be considered in such circumstances.

Here, at Caldwell & Robinson Solicitors, we can guide you through each stage of the process, providing expert advice tailored to you. As a firm, we have ample experience across both jurisdictions in safeguarding our client’s interests. We understand that any agreement will need to be tailored to your circumstances and will draft a bespoke agreement accordingly. Should you wish to discuss your options, please contact us today and ask for a consultation.

This advice is written by Joanna Burns, Family & Child Law Solicitor.

If you would like to contact Joanna, please click here.