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Currently, pre-nuptial agreements are not strictly legally enforceable within the jurisdiction of England and Wales. However, the family courts are increasingly respecting of the terms of pre-nuptial agreements where the following factors have been met.

  • Each party receives independent legal advice on the terms of the draft agreement;
  • There needs to be full and frank disclosure by each party;
  • Each party must enter into the agreement of his own free will;
  • The terms of the agreement must be fair and reasonable;
  • There must be sufficient time between signature of the agreement and the wedding ceremony to avoid any suggestion that either party was placed under pressure at the last minute;
  • The agreement must be made by way of Deed;
  • The agreement is more likely to be upheld if its terms last for a specified period, such as 3-5 years, and that there is a review of terms in the event of a change of circumstances, such as the birth of a child or ill health.

Pre-Nuptial Agreements are useful to protect:

  • Assets acquired before the marriage;
  • Inherited assets & Family Wealth;
  • Gifted assets;
  • The interest of children born to each of the parties prior to marriage.

Advantages of a Pre-Nuptial Agreement

  • It provides clarity as to what will happen if the marriage breaks down;
  • It will thereby reduce the cost of litigation;
  • It seeks to protect pre-acquired assets of the marriage and the interest of children conceived by each of the parties prior to marriage;
  • It encourages those with wealth to enter into marriage knowing that they have taken steps to secure the protection of their non-marital assets as far as is possible.  

Post-Nuptial Agreements

These are agreements entered into during the marriage which seek to protect certain assets from claims by the other spouse in the event that the marriage were to break down. They are useful in protecting business assets, especially used in conjunction with a restructure of company shares and the creation of a discretionary trust.

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Creation of a Trust

The creation of a trust may protect a spouse’s family wealth to some extent from the family court. Our courts have a broad power to vary certain nuptial settlements and can take into account the existence of a trust as a “resource” of the spouse who benefits from the trust.

The trustees of a trust, whether the trust is based here or offshore, will need to take swift expert advice at an early stage to protect all the beneficiaries of the trust, and must be advised on the extent to which they must submit to the jurisdiction of the courts of England & Wales or whether the offshore jurisdiction which governs the trust provides the trustees with local protection. In the case of offshore trusts, it is important to obtain legal advice in this country and in the relevant overseas jurisdiction.

At Myerson, our Private Client and Family Law Specialists can advise spouses, settlors and trustees, (whether in this country or overseas), on their duties and responsibilities, and the extent to which the trust itself is vulnerable to attack upon divorce. The Private Client Team has extensive experience in drafting trusts to ensure that family wealth is given maximum protection, and in advising clients on the most tax efficient way to protect their wealth.

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Meet Our Specialists

Home-grown or recruited from national, regional or City firms. Our specialists are experts in their fields and respected by their peers.

Jane Tenquist

Jane Tenquist

Jane is a Partner and Head of the Family Law Team

Nichola Bright

Nichola Bright

Nichola is a Senior Solicitor in our Family Law department

Sarah Whitelegge

Sarah Whitelegge

Sarah is a Solicitor in our Family Law department

Holly Atkins

Holly Atkins

Holly is a Trainee Solicitor in our Family department

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