People have often heard of pre-nuptial agreements , which are contracts made between Parties (i.e., fiancé and fiancée) prior to marriage on how a subsequent divorce is to proceed.
Post-nuptial agreements are, however, less commonly known. These agreements are the equivalent of pre-nuptial agreements made by Parties, but during the course of their marriage, where they wish to agree on how to proceed in the event of future divorce.
In this article, we will explore post-nuptial agreements and compare their similarities as well as differences with pre-nuptial agreements.
Comparison of Pre- and Post-Nuptial Agreements
Both pre-nuptial and post-nuptial agreements should follow these general principles of contract law:
- Parties must freely and willingly enter into such agreements, and there must be an absence of any vitiating factors (such as duress, undue influence or mistakes).
- As such, regardless of which agreement the Parties choose to enter into, it would be best if both sides ensure to have received the benefit of legal advice.
In terms of differences: - Pre-nuptial agreements are made by Parties before getting married, while post-nuptial agreements are made by Parties during the course of their marriage.
Contents of a Post-Nuptial Agreement
Both pre-nuptial agreements and post-nuptial agreements can include terms governing the issues pertaining to a divorce such as:
- Reasons for the irretrievable breakdown of the marriage
- Division of matrimonial assets
- Spousal maintenance
- Child matters (if any)
- Custody, care and control as well as access
- Child maintenance
The agreements can also canvass Parties’ respective roles and obligations, or even ownership of property during the marriage. Both agreements could, for example, state:
- How residential and household expenses will be borne between Parties during the marriage.
- How inheritance and gifts received by one Party during the marriage is to be treated.
It is, however, more common for Parties to set out certain obligations in post-nuptial agreements, such as the payment of spousal maintenance, rather than in pre-nuptial agreements.
Enforceability of Pre- and Post-Nuptial Agreements
Both pre- and post-nuptial agreements will not be strictly enforced by the Family Courts.
- When it comes to the division of assets and spousal maintenance, either type of agreement is merely one of multiple factors for the Family Courts to consider when making its decision.
- As for child issues on custody, care and control, access and child maintenance, the Family Courts will disregard the relevant terms of both pre-nuptial and post-nuptial agreements if it is not found to be in the best interests of the child.
Despite this, it can be said that post-nuptial agreements (as opposed to pre-nuptial agreements) may be accorded more weight by the Family Courts when it comes to the determination of division of assets and spousal maintenance. - This is because a post-nuptial agreement is made during Parties’ marriage (rather than before) and is a more up-to-date reflection of their current intentions. Parties are typically able to better appreciate the implications and responsibilities that a marriage entails, especially after they have entered into one.
- Furthermore, significant weight may be accorded when post-nuptial agreements are made to govern potential post-divorce matters, after the marriage has failed. This is because of the impending reality of divorce, rather than it merely being a remote contingency.
Ultimately, pre-nuptial and post-nuptial agreements share many similarities. Even if the Parties have already entered into a pre-nuptial agreement, they may nevertheless execute a post-nuptial agreement as well. A post-nuptial agreement may better reflect Parties’ circumstances, which are naturally expected to change over the course of the marriage.
Engaging a Pre-Nuptial and Post-Nuptial Agreement Lawyer
In the event of divorce, Parties are likely to appreciate how useful a prenuptial or postnuptial agreement are. Having financial matters governed in advance of relationship difficulties and at a time where both Parties are emotionally stable, is ideal. A good Pre-Nuptial and Post-Nuptial Agreement Lawyer would be able to help you and your spouse discuss and plan ahead for different possible scenarios in both of your interests.
