What are prenuptial and postnuptial agreements?
Many people may see a prenuptial or postnuptial agreement as a contract that means a separation is inevitable or even that they encourage a divorce. In fact these contracts are a great way of establishing which assets or liabilities belong to each party therefore protecting the parties’ financially as included in the agreements are generally how the couple intend to divide their property and other assets and liabilities if the marriage ends.
The difference between prenuptial and a postnuptial
The difference between a prenuptial and postnuptial agreement is that with a prenuptial agreement if one party does not like the provisions or they cannot come to an agreement then they may decide not to get married whereas with a postnuptial agreement the couple is already married therefore legally bound and owe a fiduciary duty to each other.
To be valid and enforceable, the agreements must, at a minimum, meet the following basic requirements;
- Agreements must be in writing.
- Both parties to an agreement must have signed the agreement voluntarily and intentionally.
- Full and fair disclosure. At the time each party enters into the agreement, they must each make a full and fair disclosure to the other of his or her assets, liabilities, and income. If the information that one party relied on was not accurate or complete, the agreement will not be enforceable.
- Agreements must not be unfair. An agreement that is one-sided or that is otherwise extremely unjust toward one party, based on the facts and circumstances, will not be enforceable.
- Agreements must be executed correctly. Both parties’ need to sign the agreement and should obtain independent legal advice.
Why enter into a prenuptial or postnuptial agreement?
The most common reasons for entering into one of the above agreements is the following;
- To simply to clearly define each party’s wishes for the property, assets and liabilities they brought into their marriage.
- When spouses have children from previous marriages or relationships, they may want to make sure that certain assets would pass to those children.
- To protect any inheritances.
Are the agreements legally binding?
The Courts view on prenuptial and postnuptial agreements are not formally binding in England and Wales, although this is currently under review. Fundamentally, a properly prepared agreement will be upheld by the Courts. The Court has a duty to consider all the circumstances of the case, therefore significant weight may be given to a Prenuptial Agreement in any particular case.
How we can help
If you would like any assistance with a prenuptial or postnuptial agreement then please contact a member of the family department at Jacksons on 01642 356500 and we shall be happy to provide a 30 minute free initial consultation.
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