Expert Advice From Dee Popat: Post Nuptial Agreements
Written by Peta Ireland Al Akawi on June 30, 2019.
Tagged under: BCME Expert, BCME expert panel member, Dee Popat, Expert Advice From Dee Popat, Married Couples, Prenuptial Agreements - What to include, liable, prenuptial
Most of us are familiar with the term ‘Prenuptial Agreement’, however once you’ve said your ‘I dos’ and tied the knot, is it ever too late to protect your assets/wealth? Today, BCME expert panel member and Head of Family Law at James Berry & Associates Dee Popat, is shedding some light on this very topic.
As always, please feel free to contact Dee if you would like advice on a specific situation. We hope that this article provides some clarification.
Over to you Dee…
A Post-Nuptial Agreement is entered into during the marriage. Like a Prenuptial Agreement, it sets out the couple’s agreement in relation to finances and other matters, should the relationship break down in the future. It can deal with such matters as the division of capital and property, division of personal belongings, whether and how much maintenance is to be paid by a former spouse to the other and provisions for children including finances for them. A Post-Nuptial Agreement is an effective way to limit the Court’s involvement in relation to deciding on such financial arrangements in the event of a divorce.
A Post-Nuptial Agreement may also be made if there is an existing Prenuptial Agreement but there has been a change in circumstances since the execution of that agreement. There may be changes which may impact the agreement such as moving to another legal jurisdiction, having children, acquisition of an asset or substantial wealth, the loss of employment or inability to work due to ill health, to name just a few.
The requirements that will need to be met to ensure that any agreement is upheld in Court include:
♡ The agreement must be contractually valid and must be able to withstand challenge on the basis of undue influence or misrepresentation and it must not be entered into, under duress.
♡ The agreement must contain a statement, signed by both parties, confirming that the parties understand its effect and that they understand that the agreement is a qualifying nuptial agreement and will remove the Court’s discretion to make a financial provisions Order in the event of a divorce, save insofar as the agreement leaves either party without provision for their financial needs or is held to be unfair.
♡ At the time of the making of the agreement, both parties must have received disclosure of material information about the other party’s financial situation.
♡ Both parties must have received independent legal advice or the opportunity to obtain the same. If one of the parties decides not to obtain legal advice, they must sign a declaration that they were advised to do so however chose not to.
♡ The agreement must be executed before witnesses.
Although nuptial agreements are binding in some countries, they are not in others. However, in countries where they are not binding, a Court may uphold an agreement if the elements set out above are evident. A Court may also decide to disregard the agreement, or parts of it, where it is unfair to hold a party to it, such as where it does not meet the reasonable needs of the children or one of the spouses. An agreement could be deemed unfair and hence fail to have the intended effect where the agreement fails to take into consideration all the circumstances of the case.
As the above is only an overview, should you require specific advice with regards to Pre or Post-Nuptial Agreements, please do contact me at [email protected].