When to consider having a pre-nuptial or post-nuptial agreement

10 March 2025

As a Family lawyer usually the couples you see seeking a pre-or post-nuptial agreement are couples where there is a sharp difference in the assets (property, savings pension) each of them owns and the one who owns those assets wants to preserve those assets and not have them forming part of any matrimonial pot on divorce. The assets can be those they have personally acquired or given to them by their family. In fact, quite often there is a share in a family business that needs to be protected.

If you are advising a client who is being asked to sign the pre- or post-nuptial agreement you often have to have an awkward conversation. There are many important criteria that have to be fulfilled for the agreement to be valid and enforceable, one point you need to ask is whether there has been any pressure to sign the agreement. Then, there is financial disclosure between the two of them. It’s at that point you see the difference in the finances and then you have to say to the client that basically by signing this agreement you are agreeing to taking less than you would likely receive on divorce if the agreement didn’t exist. ‘You are by signing this restricting your ability to make a claim in the future.’

If you are challenging the assets that are excluded you might want to reply to the other side with: ‘Why should my client sign this agreement? How is it in my client’s best interests?’

It’s really important to see proof of the financial disclosure so that you can verify it.

If there is a difference over what the pre-or post-nuptial agreement should cover and you think there is room for negotiation then it’s worth considering mediation. The parties are not planning on separating at the time they see you (if it’s a pre-nuptial they are about to get married) and therefore are more likely to be amenable to discussing how the weaker party would be worse off and how that can be accommodated. Meeting in-person with a mediator can often be a better space, less costly and quicker than resolving matters through lawyers’ correspondence.

If you would like advice on reviewing or drafting a pre-or post-nuptial agreement, please contact me.