Nuptial Agreements | Family Law

A Nuptial Agreement is a legal document, made between two individuals that relates to their assets. The commonly known ‘pre-nup’ refers to an agreement made between parties who are to become married and aims to provide an agreement specifying the settlement of assets if the marriage were to come to an end. A ‘post-nup’ is an agreement with a similar aim but is entered into after the commencement of the marriage.

It is important to note that Nuptial Agreements are not legally binding, and can be overturned by the Family Court, if deemed appropriate. However, Nuptial Agreements are often afforded significant weight in financial proceedings, subject to the agreement meeting certain requirements, unless, it would be unjust to do so.

Criteria for qualifying Nuptial Agreements

In order to achieve a qualifying Nuptial Agreement, there are certain requirements that must be met, namely:

1. It must be contractually valid;
2. It must be made by a written deed, and contain a statement confirming that both parties understand that the agreement may restrict the court’s ability to make a financial order;
3. It must be made no later than 28 days prior to the marriage;
4. Both parties must have received disclosure of the other’s financial information; and
5. Both parties must have received independent legal advice as to its content and implications.

The enforceability of Nuptial Agreements

The case of Radmacher v Granatino [2010] set a prevailing list of requirements that the court would consider when looking at the enforceability of a Nuptial Agreement in the context of contested financial proceedings within divorce. These are:

1. The Agreement must be freely entered into;
2. Each party must have fully appreciated the legal implications of entering into the agreement; and
3. It would be fair to uphold the agreement in the particular circumstances of the case.

The agreement must be freely entered into

This means that each party must have entered into the agreement using their own free will. Any evidence of duress or pressure, especially by a party who may have considerable wealth, may render the agreement unenforceable. Examples of this would include where someone has stated that they will only agree to marry their partner, on the basis that they enter into a Pre-Nuptial Agreement.

Each party must have fully appreciated the legal implications of entering into the agreement

Here, it is essential that both parties are in receipt of the necessary information and advice, regarding the possible consequences and legal implications of entering into the agreement. It is, therefore, necessary that both parties are independently legally represented, to ensure that they are sufficiently informed of the consequences of the agreement if the marriage were to come to an end.

It would be fair to uphold the agreement in the particular circumstances of the case

Each case is considered on its facts, meaning that there is no hard and fast rule in determining the enforceability of a Nuptial Agreement. It should be noted that children are considered as a priority in any matrimonial financial proceedings, and it may therefore be the case that the agreement is departed from to ensure the needs of any children of the marriage are sufficiently met. Further, the court will pay significant regard to the length of the marriage, and the age of parties. For example, where a marriage is longstanding, and parties have collectively accrued a significant amount of wealth during the marriage, it may be deemed fair to depart from the agreement, to ensure equality can be achieved, and to avoid an unjust settlement of assets.