Mediating pre-nuptial and post-nuptial agreements

Why seek out mediation support?

A pre-nuptial agreement is a mutually-created document agreed before marriage or civil-partnership that records how the couple would like their property divided in the event of the breakdown of their relationship. These agreements vary widely and focus on individual circumstances and concerns, but often include provision for the division of property and maintenance. Although pre-nuptial agreements are currently not legally binding in the UK, the Supreme Court ruling in the case of Radmacher in October 2010 changed the way in which pre-nuptial agreements are viewed.

Pre-nuptial agreements are now given decisive weight in divorce proceedings, provided that the parties entered the agreement freely and that they have a full appreciation of the implications of the agreement. Courts will infer that parties entering into pre-nuptial agreements governed by English law, intend them to be binding although courts will not uphold any agreement if the prevailing circumstances make it unfair to do so.

Whilst pre-nuptial agreements are not formally legally binding, they have now been clarified and can be given decisive weight provided that they have been properly drafted. They are a clear record of the parties’ intentions and should be upheld, provided they have been entered into freely, the parties fully appreciate the implications and they are reasonable.

Pre-nuptial agreements are becoming more popular before marriage, and far from being unromantic, they are a necessary part of sensible personal financial planning.

Post-nuptial agreements

A post-nuptial agreement is an agreement made between the two parties dealing with provision for maintenance, children and division of property in the event of the marriage or civil partnership breaking down. An agreement will be exactly the same as a pre-nuptial agreement, but is entered into after marriage or civil partnership and prior to separation.

Traditionally, post-nuptial agreements are not considered to be legally binding although such agreements, when properly executed, can be binding; best practice advice for those considering marriage is to enter into both a pre and post-nuptial agreement.

The advantages of creating a pre and post-nuptial agreements with a mediator:

  • Working with a mediator will give you time and space to ensure you are comfortable with your agreement
  • Having a pre or post-nuptial agreement in place when a marriage or civil partnership ends can protect high net-worth and save a substantial amount of money in legal fees.
  • Mediated pre and post-nuptial agreements are usually held as a series of confidential meetings with a mediator and the couple’s legal representatives present to offer advice and counsel.
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