Post Nuptial Agreements

Here at Higgins Miller we go out of our way to appreciate and empathise with the human aspects of the work we do. Although we offer expertise in the fields of family law, divorce and civil partnerships, children disputes and interaction with social services, amongst many other legal issues, we never lose sight of the feelings of the people involved.

Whilst we rely upon expertise, case experience and the specialised knowledge of our staff, we also acknowledge the emotions involved. We accept that people often seek legal advice at stressful moments of their life, such as following bereavement or when purchasing a property, and this is never more the case than when dealing with the break-up or possible break-up of a marriage or civil partnership. Whilst it may seem somewhat pessimistic, not to say unromantic, to consider the end of a relationship whilst still involved with the other person, the fact of the matter is that dealing with practical matters in the early days of a relationship can often prevent emotionally and financially damaging problems further down the line.

Most people are aware of the existence of prenuptial agreements, contracts signed before a marriage or civil union takes place in order to set out the parameters of what should happen in the event of a divorce. Agreements of this kind set out how the assets contained within the relationship – such as property or business interests – will be divided in the event of a divorce taking place, thus offering a degree of stability and certainty. Perhaps less well known but equally useful are postnuptial agreements, which are entered into after the marriage or civil partnership has taken place. Agreements of this kind are particularly useful if one or both members of a partnership have been married before and are bringing assets into the relationship, or have dependents that they wish to protect from uncertainty in the future.

The legal status of postnuptial agreements is something of a grey area. Although they are not strictly binding in the manner of standard contacts, there have been numerous examples of courts ruling that postnuptial agreements should be binding on certain conditions. These conditions include the fact that both parties should have entered into the postnuptial agreement freely and with a full understanding of exactly what the results of the agreement will be once implicated. The ruling which has the most bearing upon the application of postnuptial agreements is the Privy Council decision handed down in December 2008 in the case of MacLeod v Macleod. In brief, the case involved a couple who had married in 1994 and signed a prenuptial agreement on the basis of the fact that one partner – Mr Macleod – was significantly wealthier than the other. During the course of the marriage the agreement was varied twice, with the agreement of both parties, thus becoming a postnuptial agreement. After the start of divorce proceedings in 2005, Mrs Macleod claimed that the post nuptial agreement should be put aside and a standard financial settlement entered into.

Following several appeals, the Privy Council ruled that the postnuptial agreement was binding and enforceable and that, although the court could alter the provisions set out in a postnuptial agreement, they should only do so with reference to the amount provided for the children of the couple.

Although postnuptial agreements do not have the force of law offered by an act of parliament, judgements such as the one outlined above have set a precedent for the way in which the courts tend to treat them. This position makes it all the more important that couples should work closely with a professional legal advisor when drawing up a postnuptial agreement. Amongst the issues covered by such an agreement will be:

Assets

Debts

Future income/inheritance

Belongings, owned both personally and jointly

Maintenance payments

The division of property

At Higgins Miller we realise that drawing up a postnuptial agreement of this kind can be a difficult and stressful experience, particularly when the prospect of a divorce seems remote. That’s why we combine our legal expertise with a willingness to deal with the emotional component of the process. Our experience of dealing with delicate issues such as adoption and domestic violence enables us to guide couples through the procedure of drawing up a postnuptial agreement in a manner which is sympathetic whilst ensuring that the details are technically correct.

If you want to learn more about postnuptial agreements then call us on 0161 429 7251 or email us at [email protected]. We can provide a 20 minute initial legal aid appraisal, face to face or over the phone, free of charge, and a Fixed Fee first appointment costs £50 (Plus VAT). For more details on how we deal with the issue of case funding see the details here.

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