What are they?
This is essentially “an after marriage” agreement. It is like a Pre-Nuptial (“before marriage”) agreement to set out what will happen to the couple’s income and assets should the marriage break down, the parties separate, or one of them predeceases the other. The purpose is to prevent a fight over the outcome if the marriage breaks down and all the intendent stress and cost that can result. A Will can be changed at any time, unless the parties make what is called a Mutual Will, but a post or pre-nuptial agreement cannot be changed without both parties’ consent or court order.
The agreement may be updated should circumstances change, and this is often particularly important if children are born after the original agreement was made.
If the marriage breaks downs permanently the terms of the agreement will be adhered to unless one of the parties decides to challenge its enforceability.
What about the court?
Will the agreement be upheld? The agreement is not strictly binding on the courts like they would be in other countries. In this country much depends on whether the court feels that it would be unfair to one or both of the parties to adhere to its terms. One thing for certain is that the court will take the agreement seriously and give all due consideration as to the circumstances in which it was made, and the position of both parties at the time the matter is referred to the court.
The best way of ensuring that the agreement is upheld is for the couple:
- to each have independent legal advice prior to entering into the agreement, and crucially that both parties understood what effect the agreement would have, both legally and financially, and without undue pressure.
- to enter into the agreement well in advance of the marriage if it is a pre-nuptial agreement, which would then provide both parties time to consider things carefully and reduce the opportunity of one of them accusing the other of pushing them into it before they realised the full extent of the likely consequences; the same principle applies to a post-nuptial agreement
- to mutually exchange full and frank disclosure of their respective financial positions before entering into the agreement
It would be possible for the court to uphold some of the agreement, but not other parts which it considered unfair.
If the court considers that any terms of the agreement might adversely affect any children of the family it is more than likely that those parts of the agreement would not be upheld.
If the court upholds the agreement, it does not have to take into consideration what order it would otherwise have made if the agreement had not been made in the first place.
What sorts of things can be covered?
The agreement could cover just about anything at all. However the following list are usually important considerations for couples on the ending of a marriage:
- The family home and other property
- The property brought into the marriage by either party
- Inherited property and trust property
- Money held in joint accounts and sole accounts
- Pensions
- Debts
- Maintenance payments to either spouse, for how long, and in what amount
- Arrangement to be made for any children you have or are likely to have, both in financial and practical terms
- What circumstances should provoke a review of the agreement
Control
Making such agreements puts back the control in the parties’ hands and what could be described as an insurance policy for the future.
How can we help?
Contact our Family Law Team on 01636 594460 for free short appointment clinic on Fridays where would be pleased to advise. Alternatively we have offices in Boston, Lincoln, Spalding, Sleaford and Grantham.