Pre and Post Marital Agreements - Questions & Answers

Q: Is a pre- and post-marital agreement the same as a pre- and post-nuptial agreement?

A: Yes. The descriptions are used interchangeably by courts and lawyers.

Q: What is the difference between a pre- and a post-marital agreement?

A: A pre-marital agreement is signed in anticipation of the marriage and a post-marital agreement is signed during a marriage.

Q: When is it worth entering into a pre-marital or post-marital agreement?

A: When there is a disparity of wealth between the parties, a pre- or post-marital agreement can protect a party's pre-marital wealth. Couples who marry who wish to protect their assets or regulate their affairs should enter into a pre- or post-marital agreement.

Q: Are these agreements binding on a court?

A: Recent court decisions show that judges are placing increasing weight on properly drafted pre-marital agreements. The current law is that the court will enforce a post-marital agreement unless it would cause hardship.

1. Pre-marital agreements

Agreements are most likely to be upheld where:

• it is a childless marriage;
• it is a second or subsequent marriage;
• the parties are middle aged or elderly;
• the agreement makes fair provision for both parties and meets their needs;
• both parties had independent legal advice and there was full financial disclosure;
• there was no undue pressure on either party to enter into the agreement;
• the agreement is made at least 21 days before the marriage.

2. Post-marital agreements

Such an agreement is signed after the marriage and will be enforced by a court on divorce subject to:

• compliance with normal contractual conditions, such as there not being any undue influence; and
• the power of the court to vary the agreement if there has been a change of circumstances.

Q: Do I need to review my pre- or post-marital agreement and if so, when?

A: The more regularly you review the agreement, the more likely it is to be upheld. You should certainly review your agreement when significant events happen, such as the birth of a child, purchase of a new property and every 3-5 years.

Q: If I have complied with all the conditions, will the court be involved at all if my marriage fails?

A: Yes. You cannot contract out of the court interfering with your agreement. However, if all the conditions are satisfied and there has been no major change in circumstances, you should assume that your agreement will be a very persuasive factor when the court exercises its discretion.

Q: It all seems complicated and expensive. Why should I bother?

A: A pre- or post-marital agreement can be very persuasive in influencing how assets are divided in the event of a marriage breakdown. Entering into one therefore gives greater control and certainty to individuals. Furthermore, an agreement kept under review will allow you to make your own binding arrangements both during the marriage and upon the marriage breaking down. TLT are experts in drafting pre- and post-marital agreements.

Q: If we have connections overseas, does that make a difference?

A: Yes. It is important to consider which country's law is relevant to the agreement. We can advise on international jurisdictions.