Pre and Post Nuptial Agreements

You can enter into a pre-marital agreement or an agreement during marriage which deals with the financial assets in the event of the marriage breakdown.  Otherwise known as Pre and Post Nuptial Agreements these can avoid the time, expense and acrimony that can occur on the breakdown of the marriage and divorce proceedings.

In most countries Pre and Post Nuptial Agreements are binding, but not in this country.  The reason for this is that the court still retains an unfettered discretion to make Orders on divorce or dissolution if it believes that the agreement reached is unfair or it does not meet the needs of the parties.

Despite the court’s discretion not to uphold terms of such agreements, it does recognise that the parties have a right to enter into effectively what is a contract settling what will happen to the matrimonial assets in the event of marriage break up and so when determining finances the court will take into account what has been agreed upon in the contract unless there is good reason to order otherwise.

In considering whether a Pre or Post Nuptial Agreement is fair and should therefore be upheld, the court will want to see that the parties have entered into the agreement without duress, that they have gone through a process of full and frank financial disclosure so as to enable them to make a fully informed decision and the court will want to see that the parties have received independent legal advice advising the parties of the implications of any agreement reached.

Further, it is important to remember that circumstances can always change and therefore if a Pre or Post Nuptial Agreement is entered into it is always important to keep such agreement under review.