Should you consider a postnuptial agreement?

Marriage or civil partnership is a relationship that most of us will enter into at some point in our lives. Pre and post-nuptial agreements can be an effective and simple way of protecting the interests of both parties within such partnerships. Generally both types of agreement will determine the division of assets if a marriage or civil partnership breaks down.

In fact there is a growing interest in postnuptial agreements -similar to a prenuptial agreement but made after a marriage or civil partnership has already been entered into.

Postnuptial agreements are most appropriate in certain circumstances:

  • Where someone is to receive (family) wealth during the marriage or partnership and wants certainty about what would happen to the capital if the relationship failed:
  • Where one spouse or partner intends to take time out of work and wants financial security during that period or subsequently: or
  • The parties considered a prenuptial agreement but did not get round to it and there may have been unequal wealth coming into the relationship, it may be a second marriage with  the divorce process the first time around being harrowing or there may be children of a previous marriage.
  • There could be a family business to think about so that control of the business is preserved within the family in the event of a relationship floundering.

There are, however, some common misconceptions that often deter people from giving postnuptial agreements serious consideration namely:

  • They are only for the rich. This is not true.
  • They are not legally enforceable. In Scotland prenuptial and now postnuptial agreements have been a legal norm for quite some time and enforceability should not be an issue if the agreement is correctly drawn up.
  • That such agreements undermine a relationship. Many believe that the modern reality is that a well-made pre or postnuptial agreement can be viewed as a solid foundation for a marriage or civil partnership by introducing clarity and transparency. That said there will be many who believe that a marriage or civil partnership should be based on trust and will remain reluctant to enter into such a formal agreement their vows remaining more paramount to considerations of avoidance of future disputes.

To have and to hold from this day forward
For better for worse
For richer for poorer
In sickness and in health
To love and to cherish to the exclusion of all others
For as long as we both shall live.

What do you think?

This entry was posted in Legal by Elizabeth Baker. Bookmark the permalink.

About Elizabeth Baker

Elizabeth is our Business Development Manager. She has a degree in both English Literature and Law from Glasgow University. After graduating in 1983 she served her traineeship as a solicitor in Oban. When she was admitted as a solicitor her first job was at Mitchells Roberton in 1985 so she is a well known face. She spread her wings and joined other firms along the way and had a successful law practice under her own name for some years. She returned to Mitchells Roberton in 2011 and works primarily to enhance the marketing of our firm. With her excellent links with small business and the media in the greater Glasgow area, she is well placed in the role and generates a good deal of referrals and new business. Elizabeth is a people person and naturally connects with both staff and clients. Elizabeth has two grown up children and loves walking her dog, travelling and reading literature.

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