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The Rise of the Pre and Post-Nuptial Agreement

The post-nuptial agreement (post-nup) is similar to the pre-nuptial agreement (pre-nup) in the way that it spells out how a couples assets are to be distributed in the event of divorce or death. The main difference is that a post-nup can be entered into at any time after the marriage or civil partnership has taken place.

For a long time, pre and post-nuptial agreements represented a lack of trust and suggested that one person was foreseeing the end of the union. There was a stigma attached to such agreements which suggested an act of pessimism and doubt, despite them being rather more common in the rest of Europe. They are now less stigmatised and in recent years, there has been a rise in the number of people entering into them for various different reasons, not least following the case of Radmacher v Granatino which ensured the weight should be given to such agreements under English law. Now, they are more to do with protection than they are to do with need, and so the underlying objective therefore is that the agreement will never have to be called upon.

There is no doubt that there are advantages to entering into a nuptial agreement. It enables a couple to have transparency during the marriage, offers security to the financially weaker party and also reduces the likelihood of the parties being subject to emotionally exhausting and costly court proceedings, in the unfortunate event of breakdown of the marriage – as everything would have already been laid out and agreed. The agreement would however still be scrutinised by the court to ensure that it is fair and meets the parties’ needs.

Post-nuptial agreements are commensurate with what are referred to as a “Reconciliation Agreements”. These are entered into in the situation where a couple has previously separated but are now in a relationship again, and want to avoid uncertainty if things go wrong again. It is essentially an agreement to signify renewed commitment after separation followed by reconciliation. What we are also seeing now is a trend of women seeking Post-Nup’s during the marriage. This can be in situations such as having discovered that their partners have been unfaithful to them. One Guardian article equates this to “the financial equivalent of castration”.

Perception is shifting towards considering pre and post-marital agreements as sound financial planning and taking steps towards peace of mind.

Always seek legal advice before entering into any nuptial agreement. Despite the fact that they are not legally binding, if they have been executed properly, it is very difficult to challenge the terms of a nuptial agreement.

Our experienced team have been involved in preparing a wide range of prenuptial agreements where significant assets have been held in multiple countries.

Novlet Levy (Trainee Solicitor)

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