Post-Nuptial Agreements - the Basics

Although divorce rates are in decline, more than 40 per cent of marriages end in divorce (in England and Wales more than 100,000 couples divorce annually) and when one in five of all men and women seeking to end their marriage have already been through one divorce, it is perhaps not surprising that more and more people are seeking to safeguard their individual positions by entering into a pre-nuptial agreement prior to marriage or securing protection by drawing up a post-nuptial agreement at a later time.

For couples who are already married, particularly those with children, drawing up a post-nuptial agreement, which is agreed upon by both as being a fair statement of their wishes, can prevent a lot of potentially harmful stress in the event that the relationship turns sour.

To be binding a post-nuptial agreement must be seen to be fair. When considering whether to enforce a post-nuptial agreement, the court has regard to: 

• the conduct of the parties leading up to the agreement; 
• the circumstances surrounding the making of the agreement; 
• whether there was undue pressure by one side or exploitation of a dominant position to secure an unreasonable advantage; and 
• the interdependence and mutual influence that existed between the parties.

Recently, the Government has announced its intention to give pre- and post-nuptial agreements legal effect . A well-drafted agreement, made freely and with the benefit of legal advice, is highly persuasive. However, at the present such agreements to not have the force of law.