Post-nuptial agreements

Married couples who want to protect their assets in the event of future separation or divorce have been given renewed hope of creating binding agreements by a recent case, according to our family law expert, Phil Barnsley, the case provides guidance to couples who wish to benefit from such protection.

Post-nuptial agreements must be entered into prior to separation and usually deal with provision for maintenance, children and division of property in the event of the marriage breaking down. They are intended to avoid the need for the parties to go to court to resolve these issues. They can also provide a level of flexibility that the courts cannot always cater for.

Traditionally, the courts have not upheld pre-nuptial agreements where there has been pressure placed on one party to enter into it, or where the parties' circumstances change to the extent that it would be unfair to enforce the agreement. However, in the case of MacLeod the court stated that if the parties enter into an agreement the mere fact that the agreement is not what a court would have done cannot be enough to have it set aside. The court in this case held that the post-nuptial agreement was enforceable as against Mrs MacLeod.

Philip explains: "In recent years there has been much written and said about pre-nuptial agreements and it has perhaps been assumed that post-nuptial agreements fall into the same category."

This decision is the latest in a string of cases concerning marital agreements and a further clear indication that these agreements are becoming more acceptable to the courts. The overwhelming trend is towards legislation in this area to clarify the circumstances in which such agreements are going to be binding upon the parties.

In effect, married couples who already have a pre-nuptial agreement may be well advised to consider reviewing their arrangements and entering into a post-nuptial agreement, which is likely to carry more weight in the eyes of the law should the marriage break down.

For further details, please contact Philip Barnsley, a Partner in the Family team on 01384 364148.

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