If you did not enter into a Pre-Marital Agreement, it is now possible to enter into a Post-Marital Agreement.

Post-Marital Agreements are not strictly binding in England and Wales in the same way a commercial contract would be. The Courts have, however, recently ruled that if entered into freely with full appreciation of the implications, the Court will hold the parties to that agreement, unless it would be obviously unfair to do so.

In order to consider whether a Post-Marital Agreement is valid and enforceable the Court will consider these factors:

  • Did each party have independent legal advice?
  • Did each make disclosure of all material financial circumstances and other relevant matters at the time of entering into the agreement?
  • Did either party sign under duress or undue pressure?
  • Do the terms of agreement meet everybody’s needs including any children?

Why should you consider a Post-Marital Agreement?

  • A Post-Marital Agreement can help protect business assets for the principal business owner.
  • Post-Marital Agreements can help to “ring-fence” inherited wealth received by either party during the marriage.
  • Post-Marital Agreements can help to “ring-fence” what would otherwise be termed marital assets for a child or children from a previous marriage or relationship.
  • They can provide clarity in the event of separation and/or divorce.
  • They can reduce the likelihood of incurring significant legal fees in the event of a divorce.
  • They can reduce issues of stress in the event of separation and/or divorce.
  • If you have received or are about to receive a parental loan to assist for example in a property purchase, a Post-Marital Agreement can help to “ring-fence” that good fortune for you.

Is it negative to talk about these and plan ahead?

No; it should be looked upon in the same way that we look at holiday insurance. You do not buy holiday insurance on the understanding that something is going to go wrong on your holiday, but rather, for “just in case”. The same principle should apply to considering and entering into Post-Marital Agreements.

For more information please contact Elizabeth Hodder.

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