When planning a wedding and future together, divorce is the last thing on a couple’s mind. However, with around half of all marriages ending in divorce, people are increasingly opting to draft up a pre-nuptial agreement before getting married or a post-nuptial agreement once married, and for good reason.
When planning a wedding and future together, divorce can be the last thing on a couple’s mind. But with around half of all marriages ending in divorce, more and more people are opting to draft a pre-nuptial agreement before getting married, or a post-nuptial agreement once married, and for good reason.
What is a Nuptial Agreement?
A pre-nuptial agreement is a legal document entered into by each party before marriage that sets out how the couple intends for their assets and debts to be divided between them should they get divorced in the future. It will sometimes also include how the couple wishes to deal with their assets during the marriage. A post-nuptial agreement is essentially the same thing, but is entered into once you are already married.
For a nuptial agreement to be upheld, it must satisfy the legal test set out in Radmacher. Key points include that each party: freely entered into the agreement without undue pressure; obtained independent legal advice prior to entering into the agreement; was informed of the full implications of entering into the pre-nuptial agreement; and there was a full and honest disclosure of both parties’ assets. The actual agreement must also be validly drafted pursuant to the laws in the jurisdiction where it is to be applied.
A nuptial agreement should also include a review clause and should be reviewed whenever any significant change in the marriage occurs. For example, the birth of a child or the receipt of a large inheritance by one spouse could drastically change the terms of a pre-nuptial agreement.
