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What’s the difference between pre nuptial and post nuptial agreements and do these nuptial agreements actually work?

Divorce | Private Client

A pre-nuptial agreement, or ante-nuptial agreement sets out the terms dealing with a couples finances and assets before the date of the marriage. The purpose of such agreement is to make provisions as to how their finances and assets would be divided in the event of divorce.

Pre-nuptial agreements are more commonly used by those who are entering into their second marriage, and wish to protect the future assets for their children or because they wish to protect certain assets which they acquired before meeting their partner, i.e. a property.

In order for have a pre-nuptial agreement to have good standing, it is encouraged that both parties seek independent legal advice as to the fairness of the terms they are opting to enter into. If for example, the pre-nuptial agreement was weighted heavily in favour of one the parties, this may be unlikely to succeed as the court would not wish to leave one party at a significant disadvantage.

The court will also have consideration to a number of other factors such as; whether there has been mutual disclosure by both parties, whether the agreement has been signed free from duress or undue pressure and whether it would be fair to give weight to the agreement given the circumstances which the parties find themselves in now (at the point of divorce).

We would recommend that if you wish to enter into a pre-nuptial agreement that you do so in good time before your date of marriage, as your lawyers will need to have enough time to go through both sets of disclosure and draft and negotiate the terms of the agreement.

What happens if you run out of time before getting married?

If you have not entered into an agreement before marriage, there is still the option of entering into a post-nuptial agreement. Again it is advised that in order for the agreement to be given any weight, should the agreement be required to come into effect at a later date, you should both seek independent legal advice and enter into mutual disclosure.

When the court is asked to determine whether a pre-nuptial agreement or a post-nuptial agreement is enforceable, the court will give consideration to a number of circumstances. Not only will it consider the circumstances at the time the agreement was entered into, but it will also have consideration as to the conduct between the parties during the marriage, and consideration to the breakdown.

To conclude, the court will have a broad discretion when determining whether a pre-nuptial or post-nuptial agreement should be given any weight, and whether this should be enforced upon the parties.

Should you need further advice on making arrangements, contact Parslows Jersey on 630530, or email: familylaw@parslowsjersey.com

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