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Why Should I have a postnuptial agreement?


Relationship Difficulties - Bastows Solicitors
Published: 6th September 2016 - Category: Post-Nuptial Agreements - Author: Lynne Bastow

Draw up a postnuptial agreement if your relationship is undergoing difficulties and there is a possibility of a split in the future. It is worth reviewing your financial situation and drawing up an agreement as to the division of your assets in the event of a separation.

If your relationship is blissful it is worth deciding on  a division of your net worth in the event of a separation in the future as emotions will not be involved and people are able to act far more rationally when they are not in pain or reacting in fear, anxiety or revenge.

Is it worth the paper it is written on? What is it’s currency in English law?

Let’s go back to 2010 and the  Supreme Court decision in  Radmacher v Gratino

The judgement test of was –

“Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications?  If so, in the circumstances as they now are, would it be fair to hold them to their agreement?”
Lady Hale

Pre and post nuptial agreements are not legally binding but…

Ignore Tony Robbins here who says never use but because this is a big but…

They will be upheld unless they are unfair.

What does unfair mean?

An unfair postnuptial agreement or an unfair prenuptial agreement.

That is down to the individual judge – that favourite catchphrase that keeps lawyers busy second guessing – Judicial Discretion. Judges are not robots and what one judge considers unfair another may not so there is a form of judicial lottery still at play.

Benefits of a pre or postnuptial Agreement.

  1. It is  a factor in your favour.
  2. It shows what the parties intended.
  3. If both have had the opportunity to take legal advice,
  4. Provided both have given full and frank disclosure,
  5. So long as both have signed without duress
  6. Given there has been no fraud or mistake then why should it not be upheld if it is fair?

Downside of taking a  pre or postnuptial agreement.

  1. It is not guaranteed.  If it is unfair it will not be upheld – these situations should be rare because both parties should have legal advice and be advised accordingly. Not following legal advice should be an indicator of the possibility of it not succeeding.
  2. You may not separate so you have spent probably £2000 on unnecessary legal fees. It is a bit like taking out an insurance policy and then not dying in time.

How much is a postnuptial agreement?

That depends on your assets. If I was drafting Donald Trump’s my initial fee estimate would be based around obtaining full financial disclosure, talking to his accountants and advisors, advising on international law, jurisdictional issues, extended family member claims, potential litigation risk from many sources and the make up of the portfolio and the issues of property market movements and  stock market exposure. He would be looking at a six figure invoice paid on account in dollars.

If you are not quite as wealthy and complex as Donald Trump our starting fee estimate is £1,500 ( plus 20% VAT if you live in Europe). We do take dollars and American Express.

Lynne Bastow Divorce Solicitor

Meet Lynne Bastow

With over 15 years experience, Lynne can provide excellent and valuable advice and has a friendly, positive approach towards all her clients, ensuring you get the best service possible.

Read Lynne's Books

If you need more information on divorce, Lynne has published two informative guides on divorce, which you can purchase from Amazon.

The Little Book of Divorce

The Little Book of Divorce

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The Little Book of Divorce Dilemmas

The Little Book of Divorce Dilemmas

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