Are pre/post nuptial agreements legally binding

A prenup is an agreement made before marriage, detailing how a couple’s assets will be divided if they separate. A postnup agreement is similar but is made after the marriage has taken place.

Both agreements aim to protect what you bring into the marriage and outline financial responsibilities.

Are they binding?

Prenups and postnups are not automatically legally binding. However, courts are increasingly viewing them as important and sometimes decisive.

This means that while these agreements are not guaranteed to be enforceable, they can heavily influence court decisions during divorce proceedings.

How can I make my nuptial agreement as watertight as possible?

You will want to enter into the agreement ensuring it is both procedurally fair and fair in substance. To guide you:

• Voluntary Agreement: Both parties need to enter into the agreement willingly, without any pressure.
• Timing: Agreements made well in advance of the wedding or shortly after the marriage are looked upon more favorably by a court. This should be no less than 28 days prior to the wedding. Nuptial agreements take time to draft, so don’t leave it to the last minute.
• Legal Advice: It is advisable for each person to seek their own independent legal advice to ensure that the agreement is “procedurally fair”.
• Disclosure: It is important that both parties are open about their financial situations at the point of signing the agreement.
• Fairness of the Agreement: Your lawyer will guide you on whether the agreement leaves both parties in a position where basic needs are satisfied.
• Plan Ahead: Think about what you would like to achieve with your nuptial agreement, and work out broadly what makes sense to you both in advance.

Additional considerations

Legal fees: Your lawyer will provide you with a quote for drafting the nuptial agreement once they understand your intentions and needs. It’s important to weigh up the proportionality of the costs to ensure it’s a worthwhile investment for your situation.

Consider if you need an agreement: Consult with your lawyer to determine if a prenup is necessary. If current laws already provide the protection you need, you might save on legal expenses by not drafting one.

Keep in mind

It is impossible to predict every stage of marriage. Consider planning for eventualities, for example an expiration date for the agreement or revising it if you have children.

Life changes, and so should your agreement. Make sure to review and update it as necessary.

Once the agreement is in place, keep it in mind when making financial decisions during your marriage.