For couples who are already married, particularly those with children, drawing up a post-nuptial agreement, which is agreed upon by both as being a fair statement of their wishes, can prevent a lot of potentially harmful stress in the event that the relationship turns sour.
To be binding a post-nuptial agreement must be seen to be fair. When considering whether to enforce a post-nuptial agreement, the court has regard to:
- the conduct of the parties leading up to the agreement;
- the circumstances surrounding the making of the agreement;
- whether there was undue pressure by one side or exploitation of a dominant position to secure an unreasonable advantage; and
- the interdependence and mutual influence that existed between the parties.
In one case where a post-nuptial agreement was unsuccessful, Mrs Justice Baron in her judgment gave helpful general advice to practitioners dealing with such agreements, stating:
- cases must be managed effectively and summonses must be issued in good time to allow the court to provide direction;
- serious allegations must be backed up by powerful evidence;
- when the validity of an agreement is challenged, the solicitors involved in its preparation and signing should stand aside in favour of new advisors; and
- there must be more cooperation between counsel outside court to avoid delay.