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Prenup and Postnuptial Agreements

Walt Disney

"All the adversity I've had in my life, all my troubles and obstacles have strengthened me."

What is a prenup and postnuptial agreement?

Prenup and postnuptial agreements are documents entered into by two adults with a desire to avoid or reduce future conflict and cost.  They are entered into at a time when the parties are positive and are communicating in an honest and open matter.

Pre-nuptial agreements are entered into prior to marriage.  They are particularly useful if one party is bringing significant assets to the marriage and want to ensure that their financial contribution is taken into account if there were to be a divorce in the future.

Post-nuptial agreements are entered into after marriage.  They are often entered into if one party is to receive an inheritance with which they would wish to protect in the event of a divorce.  Parties who have separated and intend to reconcile also find such agreements useful especially if a level of mistrust still remains.

Are the prenup agreements legally binding?

At present, neither a pre-nuptial nor a post-nuptial agreement is strictly legally binding. However, the Supreme Court in the well-publicised case of Radmacher v Granatino [2010] held that, in certain circumstances, these agreements will be held to have decisive weight in deciding the financial terms of any divorce settlement.

In January 2010, the Law Commission produced a consultation paper proposing a number of options for reform, provisionally proposing that if marital agreements are introduced into law, the following requirements will need to have been met for them to be legally binding:

  1. Both parties to the agreement have obtained independent legal advice;
  2. The agreement is in writing;
  3. The party seeking to enforce the agreement must have made full and frank financial disclosure;
  4. The agreement should provide for the needs of any children of the family; and
  5. The terms of the agreement are fair and should not leave one party reliant on state benefits.
  6. There was a sufficient period of time between the signing of the agreement and the wedding
  7. Neither party was under duress.

Should I get a prenup?

What prenuptial agreements provide is peace of mind and transparency from the offset. This is particularly the case if a) you have children from a previous relationship and want to ensure that certain assets are ring fenced for them to avoid later disputes on your death or b) if your spouse comes to the marriage with debt, an agreement with a debt clause can protect you from future liability, c) one party comes to the marriage with more capital or a business that they would like to retain upon a separation.

There are a number of ways of negotiating the terms of a marital agreement.  At McAlister Family Law, our team of experts are highly experience in negotiating and drafting such contracts.  

If there are cross-jurisdictional issues that need to be taken into account whilst working on your prenup or postnuptial agreement, we can assist as we do have strategic partnerships with law firms in other jurisdictions

Contact Us

For further information or to arrange a no obligation, free consultation to discuss your prenup or post nuptial agreement, then contact a member of the McAlister Family Law team today.

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