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The Split – a specialist family law perspective of episode six

Having been forgiven for trying to get it on with the vicar, Rose finally ties the knot with James in the final episode of The Split.

Humour me for a second. Suppose that Hannah or Nina (in a scene which was presumably not exciting enough to make it to the final cut) suggest to their younger sister that she and James ought to consider entering into a post-nuptial agreement. What would this involve?

What is a post-nuptial agreement and what does it cover?

As the name suggests, a post-nuptial agreement is a legal agreement made between individuals who are already married. Its purpose is to set out how the couple wish their assets to be divided between them if they later separate or divorce. Some post-nuptial agreements also detail how the couple currently arrange their finances and how this will continue or change during the marriage.

The post-nuptial agreement will usually define a married couple’s assets and property as being either:

  • Matrimonial property (or joint property); or
  • Non-matrimonial property

The post-nuptial agreement will then set out which party owns or will own certain assets on a future breakdown of the marriage.

A moment’s silence, please, for Oscar, who died suddenly the morning after the wedding. Perhaps he has left Rose some inheritance under the terms of his Will rather than leaving all of his property to his girlfriend? Inherited assets are generally considered non-matrimonial property (provided they’ve not been mingled with matrimonial assets), but Rose may wish to consider whether to enter into a post-nuptial agreement that “ring-fences” any inheritance she receives under the terms of Oscar’s Will. This is to better protect Rose’s position in the future should her marriage to James break down, as he may seek to argue that any inheritance Rose received during the course of the marriage should be treated as matrimonial property.

Is a post-nuptial agreement binding?

Post-nuptial agreements are not binding. The Court has broad discretion to decide how to redistribute a married couple’s assets and income on an application for financial remedy following the breakdown of a marriage. The Court must, however, give appropriate weight to a post-nuptial agreement as a relevant circumstance of the case when considering what are known as the section 25 factors (ie. the list of factors set out in section 25 of the Matrimonial Causes Act 1973). Depending on the circumstances of the case, it may well be that a nuptial agreement should be given decisive weight.

When will a post-nuptial agreement be binding?

The Supreme Court in the groundbreaking case of Radmacher v Granatino [2010] held that nuptial agreements will be binding in the following circumstances:

  1. The agreement must be freely entered into by each party without undue influence or pressure.
  2. The parties must have a full appreciation of the implications of the agreement.
  3. It must be fair to hold the parties to the agreement in the circumstances prevailing.

Therefore the test is one of fairness.

I would firmly recommend that Rose seek independent advice from a family law specialist solicitor if she and James are considering entering into a post-nuptial agreement.

If you would like to speak to a family law specialist about any of the issues raised in this blog or featured in The Split, please get in touch.

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