Pre-nuptial agreements must be signed before marriage. However, it is possible to enter into a post-nuptial agreement which can be signed at any point after people have married.
As pre- and post- nuptial agreements are not technically legally binding, there is a set of criteria to be followed to make sure that it is as persuasive as possible to a court, and that is contained in my earlier blog: Are Prenuptial Agreements Legally Binding?
Sometimes we are consulted too close to the wedding for a pre-nuptial agreement to be safely completed without the potential for one party to suggest that the other party pressurised them into signing. For example, it would not be appropriate for a bride to sign the agreement in her wedding dress, moments before the wedding, fearful that if she does not, that the wedding will be cancelled with all the upset that would cause.
Therefore, post nuptial agreements are quite often used, either instead of, or as well as a pre-nuptial agreement in order for both parties to be of equal standing and equal bargaining power. It would be in the same terms as the agreement signed beforehand, but there would be no time pressure.
It is also possible for an agreement to be signed in situations where the parties wish to remain married but something has occurred which makes them want to try and regulate, and have an element of control over what would happen in the event of a later separation. Circumstances could include one party discovering a large debt in the other party’s name and rearranging their marital finances to pay that debt off, but wanting that to be recognised if they separated later on.
People do mention situations where one party has been unfaithful and they wish to decide how the assets would be divided if they separated later on. In certain circumstances, where the terms are entirely fair, but parties just wish to know where they stand, this type of agreement might be attractive. In other circumstances where one party might wish to try and pressurise the other party, by asking them to decide between unfavourable terms or leaving the marital home, there is of course potential for the agreement to be challenged later on. This pressure is called undue influence or, ‘duress’, and the family court would be unlikely to uphold such an agreement, as their starting point is one of fairness.
If you would like to speak with one of our family law solicitors regarding pre/post-nuptial agreements, you can contact us on:
T: 029 2034 2233