Divorce and Children’s Specialist Lawyer, Lucinda Connell of Major Family Law, comments in the North East Times much is made of the sentiment behind pre-nuptial agreements and whether they’re an indication that the parties don’t have faith in their marriage lasting. Let me put it to you like this though: when you buy holiday insurance, you don’t do so in the expectation that some misfortune will befall you whilst sunning yourself in Cancun; but should it happen, you want to know the damage can be minimised with the least fuss, expense and distress. It’s the same with a pre-nuptial agreement: if you never need to use it, so much the better, but the insurance is there just in case.
Talk of pre-nups for ordinary folk is fairly new though, and what if you’ve already tied the know without the benefit of such insurance? You’ll be pleased to hear that it’s not too late! The logically named post nuptial agreement is basically the same as a pre-nup but entered into when the parties are already married.
Like a pre-nuptial agreement, it sets out the financial arrangements that the parties will be bound by in the event that the marriage ever breaks down. The parties can enter into this type of agreement at any time after the marriage takes place and before the marriage breaks down.
There are many reasons that parties may wish to set out their financial arrangements in a written agreement of this type: one of the parties may have inherited or expects to inherit a sum of money that they wish to protect; the parties may have encountered a marital difficulty that they have agreed to work through and have agreed that entering into a post nuptial agreement will avoid unnecessary financial arguments, either in endeavouring to reconcile or in the event that the reconciliation fails and the marriage ends.
If the parties to the marriage have entered into a post nuptial agreement and they eventually get divorced, they will be expected to abide by the terms of their agreement. The legal status of their agreement is the same as though they had entered into a pre-nuptial agreement. This means that they will be held to the terms of the agreement, unless there is a very good reason not to – for instance if one of the parties deliberately concealed assets from the other.
It is important that anyone entering into this type of agreement understands the nature of the other party’s finances. Both parties are expected to be clear and frank with each other about the value of their assets and debts. This includes business assets, pensions and offshore investments. They both must understand the nature of the agreement, it helps if they have both taken independent legal advice on the terms of the agreement before they sign on the dotted line. Both parties must enter into the agreement freely, there must be no pressure by one party one the other to sign the agreement. If there is pressure then the agreement may not be upheld as being binding by the court when the parties divorce.
Overall, the agreement must be fair to both parties, the court will want to see that the financial needs of their children have been satisfied in the agreement. If the agreement states that one party gets everything and the other party gets nothing, it is not likely to be a fair agreement and therefore won’t be upheld by the court.
Ultimately the court has the power to make an order that it thinks is fair in all the circumstances. If the agreement is properly drafted and entered into by the parties it is highly unlikely that the court will interfere with the agreement reached by the parties.
Lucinda Connell is a Senior Solicitor and a trained Collaborative Lawyer of Major Family Law, the Divorce and Family Law Specialists, 12 West Road, Ponteland, Newcastle Upon Tyne. T: 01661 82 45 82 www.majorfamilylaw.co.uk. Twitter: @majorfamilylaw