 Pre-nuptial and post-nuptial agreements
 Lyn Ellins Pre-nuptial agreements have been in the legal headlines recently and they are gaining favour as a way for married couples to avoid financial disputes if they divorce. The case of Radmacher –v- Granatino is the subject of an appeal to the Supreme Court but the findings of the Appeal Court were that it was "increasingly unrealistic" for courts to ignore pre-nuptial agreements. The fine detail of the financial judgment may change if the Supreme Court upholds Mr Granatino's appeal but it is clear that pre-nuptial agreements carry far more weight and are more likely to be upheld by the courts than heretofore.
Couples who are already married but now wish to protect their individual assets have not missed the boat. There is no reason in law why a couple cannot enter into a post-nuptial agreement. Indeed, following a ruling by the Privy Council in 2008, post-nuptial agreements seem to have legally binding status and are more likely to be upheld.
So a belt and braces approach would be to negotiate a pre-nuptial agreement and then to re-execute it into a post-nuptial agreement following the marriage. The pre-nuptial agreement should contain a clause that the parties will sign a post-nuptial agreement. If however the financially weaker party refuses to sign a post-nuptial agreement, the courts will look with some sympathy on the wealthier party.
This might sound like a licence for lawyers to print money but wealthy people who are contemplating marriage should weigh the costs of pre- and post-nuptial agreements against the value of the assets they are wishing to protect.
Of course if one party signed a pre-nuptial agreement reluctantly, he or she is unlikely to want to be tied down even tighter by entering into a post-nuptial agreement, especially if the marriage is already facing difficulties.
In these straitened financial times, financial pressures can sometimes be the final straw to break the back of a marriage and it is a sad fact that divorce rates are rising amongst the wealthier sections of society as people strive to protect what remains of their fortunes.
The best-laid pre-nuptial or post-nuptial agreements can be rendered invalid or inappropriate as circumstances change so it makes sense to keep such agreements under review and to ensure that they are up-dated regularly. This is especially important if children are born or if the marriage lasts for ten or more years.
For more information contact Lyn Ellins on 01793 511055 or lyn.ellins@clmlaw.co.uk
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