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Understanding postnuptial agreements
Postnuptial agreements are entered into after marriage either to protect wealth during the marriage e.g. if one party inherits wealth during the marriage and wishes to preserve it in the event of separation or divorce.
A postnuptial agreement is a contract and therefore must follow contractual rules. They are therefore more complex legally than some clients anticipate. These are summarised as:
- Neither party must be under duress.
- The negotiations must be at arm’s length and each party must have the opportunity to obtain legal advice.
- The parties must be clear about their respective financial positions. This means that you must not be misled about your husband or wife’s financial position and there must be financial transparency.
A postnuptial agreement is a contract and not a Court Order. This means that in the event of separation or divorce or financial claims being made following death, that the post nuptial agreement is contractual evidence confirming how you intended to regulate your financial affairs. There is recent case law which confirms the importance of such contracts and says that although the Judge retains a discretion to make Court Orders which are different to the terms of such an agreement, that discretion should be rarely and infrequently exercised.