When you’re planning a wedding, divorce is probably the last thing on your mind. But couples are increasingly turning to prenuptial and postnuptial agreements to set out ahead of time what will happen if they ever separate.

A nuptial agreement is a legal document which seeks to set out what will happen to a married couple’s assets if they separate. There are broadly two types of nuptial agreement: a prenuptial agreement (“prenup”) and a postnuptial agreement (“postnup”). The difference is that prenups are entered into before the wedding, and postnups are entered into when you are already married.

Nuptial agreements are often viewed with scepticism. Some people view them as a sign that their future spouse doesn’t trust them, or that their heart isn’t fully in the marriage. However nuptial agreements also come with many benefits. Couples contemplating marriage should have regard to the following advantages and drawbacks.

1. Nuptial agreements help you protect your assets

If you are bringing your own assets into the marriage, a nuptial agreement could help to protect those assets against a claim from your spouse. This is part of what has led to the perception that nuptial agreements are only for rich people with millions of pounds of property or investments, but that isn’t always the case. Even if your assets are quite modest, you may want to protect them should the marriage break down. Nuptial agreements can also deal with assets you are yet to acquire, which may be helpful if you anticipate receiving an inheritance.

2. They can deal with debt as well

Even if you are not overly concerned about losing assets in the divorce, there is a possibility that you will be liable for your spouse’s debts. Nuptial agreements can help to decide in advance how debt will be dealt with and protect you against being liable for your spouse’s liabilities.

3. They can speed up the divorce process

Divorce can be lengthy, emotionally charged, and expensive. The point of a nuptial agreement is to agree most of the contentious points in advance. This can help to keep the cost and stress of divorce to the minimum.

4. They are not binding on a Court of law

Keep in mind that nuptial agreements cannot bind a Court of law. This means that if the agreement is unfair according to the considerations set out in the Matrimonial Causes Act 1973, a judge may decide not to uphold the agreement and to set it aside.

This is why it is important for any nuptial agreement to be carefully drafted by legal professionals. Careful consideration needs to be given to the provision that the agreement makes for your spouse and any minor children of the family. Both parties must have a full understanding of the terms of the agreement and the assets of the other. Both must have the opportunity of obtaining independent legal advice.

If you are considering a prenup or postnup, or if your partner has mentioned they might want one, the first step is to obtain legal advice from a family law specialist. If you need advice with a nuptial agreement please contact MCP’s Family Department.