Post Nuptial Agreements

Q. Are Post-Nuptial Agreements legally binding? A. It is important to note that Post-Nuptial Agreements are not legally binding.  Therefore an Agreement which is in place cannot override a Judge’s decision when deciding upon how assets should be divided.  When dealing with financial proceedings within divorce, it is a factor that the Court is obliged to consider alongside the statutory guidelines.  The Judge will need to decide how much weight is given to the Agreement and this decision is based on the following: the Agreement must be entered into freely by both parties; both parties must have an understanding of its implications; and it must be fair to hold the parties to the Agreement upon divorce.  A process of full financial disclosure should be made between the parties and exhibited to the Agreement.  The difficulty with Post-Nuptial Agreements is that if circumstances have changed considerably over the years, how fair would it be to hold the parties to that initial Agreement?  A review clause can be inserted into the Agreement to be reviewed upon a particular event, e.g. childbirth, or on the passing of a passage of time.  The Judge will also consider whether each party has received independent legal advice and it is therefore strongly advisable for both parties to seek independent legal advice before entering into a Post-Nuptial Agreement.