March 10, 2016

How our BBC phone in highlights lack of awareness of post-nups

Pre-nups, post-nups and D37 Decree Absolutes were among the hot topics discussed when our family law specialist Norman Taylor returned to BBC Radio Leeds this week, on a live 30 minute family law phone in hosted by popular broadcaster, Richard Stead.

Pre-nups and post-nups posts were top of the agenda following research which revealed that one in ten married British people regret not insisting that their spouse sign a pre-nup agreement before tying the knot.

Norman explained that a pre-nup agreement drawn up between couples before marrying sets out how their assets will be split if the marriage fails. He outlined that although not legally binding, a carefully thought through prenup, drawn up well in advance of the marriage – and without coercion – is likely to be upheld by a court.

The programme also covered how such agreements can protect other stakeholders in a marriage – typically in-laws, who might pay for the wedding or provide a home deposit. While a pre-nup can include undertakings to repay them – for example, if the property is sold following a split – without one, contributions may simply be treated as non-refundable gifts. Experienced family law firms such as Jones Myers have a wealth of expertise in this area.

The first question posed by a listener asked if there is such a thing as a post-nup – with Richard also unaware of such an agreement.

Norman explained how post-nups are entered into after marriage; with the same aim as a pre-nup should a court decision have to be made. He outlined how they are often made by couples in a second marriage who are seeking to protect children of previous relationships, or by those who wanted a pre-nup but didn’t have time, or simply to re-inforce a pre-nup

For a post-nup agreement to carry its full weight, both parties must enter into it of their own free will, without undue influence or pressure, and fully informed of its implications. Legal advice and disclosure are desirable, but what matters is that both parties are fully aware of the implications of the PNA and have the information necessary to make an informed decision. It follows that duress, fraud or misrepresentations are potentially vitiating factors.

The couple’s circumstances at the time of the agreement are also relevant. These include age and maturity, and whether either or both had previously been married or in long-term relationships.

The issue of whether pre-nups dampen romance came up with Norman, who advised that timing was important, suggesting an agreement be drawn up when financial plans and practicalities were being discussed – as opposed to introducing the issue over a romantic meal.

Phone in queries also included a listener questioning if a D37 Decree Absolute he had received from the court meant he was now formally divorced.

Norman replied that, while the marriage was now legally over, there may be dangers if there is no financial order dealing with each party’s claims – with the serious risk that a former spouse can make a claim against their ex, often years after the divorce is finalised.

You can listen back to the programme on Radio Leeds if you missed it live.

If you have any comments, queries or concerns on pre-nups, post-nups or any divorce related issue, leave a comment below, call the Jones Myers team on 0113 246 0055 or tweet us on @helpwithdivorce.