Most people have heard of Pre and/or Post Nuptial Agreements (“pre-nups” and “post-nups”) but many are uncertain of their value and relevance. Pre-nups and post-nups are not merely reserved for the rich and famous with significant wealth and assets. They are becoming popular amongst those wishing to preserve assets in the event of marital breakdown.

Common reasons for having a pre or post-nup are where assets have been acquired before marriage, for those entering a second marriage, those who have children from previous relationships, or for those with a significant chance of future inheritance.

Pre and post-nups cannot override legislation or prevent a judge from deciding on the appropriate division of assets on divorce. However the agreements can be taken into consideration by the Judge.

Pre-nups are entered into prior to the marriage. Post –nups can be entered into any time after the marriage. Often a couple will agree to convert a pre-nup into post-nup upon review of the agreement after their marriage.

The Supreme Court has set down principles which, if complied with, will result in the pre or post-nup being considered relevant and given “weight” by the Judge within divorce proceedings:

  1. The agreement must be freely entered into with no pressure placed on either party to sign.
  2. In the case of a pre-nup, the longer before the ceremony it is signed, the better. The minimum recommendation is 21 days before. For a post-nup there must not be any suggestion of coercion to sign.
  3. Both parties must have independent legal advice.
  4. Both parties must provide full, document financial disclosure of his/her assets prior to entering into the pre or post-nup.
  5. It must be fair to hold the parties to the agreement within the pre or post-nup in all the circumstances of the divorce. There is nothing inherently unfair about a pre or post-nup seeking to ring-fence assets acquired by one party. Ensuring the pre-nup or post-nup provides for both parties’ needs is likely to be considered fairer.

We offer a free no obligation initial consultation. Taking legal advice at an early stage can often avoid pitfalls and can enable you to resolve matters sooner. In the case of a pre-nup, you can focus on the joy of your upcoming wedding and not on the legalities.

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