Post-Nuptial Agreements

More than 40 per cent of marriages now end in divorce so it is not surprising that more and more people are seeking to safeguard their individual positions by entering into a pre-nuptial agreement prior to marriage or securing protection by drawing up a post-nuptial agreement at a later time.

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.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.