GLOSSARY

Post-nuptial agreement definition

Produced in partnership with Judith Pepper of Coram Chambers

What does Post-nuptial agreement mean?

A post-nuptial agreement is an agreement entered into by the parties to a marriage (or civil partnership) subsequent to the marriage/civil partnership usually in relation to financial matters.

Similar principles to those applied to pre-nuptial agreements will apply to a post-nuptial agreement, ie in the event of a dispute as to the terms of the agreement the court will consider, inter alia, the parties' conduct prior to and following the agreement and whether the agreement was entered into with the benefit of legal advice and full knowledge of the parties' circumstances. A post-nuptial agreement that has been properly and fairly arrived at with competent legal advice is unlikely to be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.

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Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision

The parties to a marriage or civil partnership cannot contract out of the court’s jurisdiction to make orders for financial provision on divorce or dissolution, however, the existence of a post-nuptial, maintenance or separation agreement may have a persuasive or even decisive influence on the outcome of either party’s application for a financial remedy, depending on the precise circumstances surrounding the agreement. The Supreme Court in Radmacher (formerly Granatino) v Granatino did not accept that there is necessarily a material difference between a pre-nuptial agreement and a separation agreement, and found that the court is entitled to overrule the agreement in either case. See also Practice Note: Implications of pre-nuptial agreements within proceedings for financial provision.The agreement may be taken into consideration as either part of all the circumstances of the case, or as conduct it would be inequitable to disregard. Post-Radmacher the court must have regard to whether the terms of the agreement are 'fair', see: The impact of Radmacher. An example of the application of the general principles, including Radmacher, is MB v EB (No 2), where the wife was a businesswoman from a wealthy family and the husband was an artist. The husband had a long history of mental health issues, aggravated by an accident which

Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision

Implications of maintenance, separation and post-nuptial agreements within proceedings for financial provision The parties to a marriage or civil partnership cannot contract out of the court’s jurisdiction to make orders for financial provision on divorce or dissolution, however, the existence of a post-nuptial, maintenance or separation agreement may have a persuasive or even decisive influence on the outcome of either party’s application for a financial remedy, depending on the precise circumstances surrounding the agreement. The Supreme Court in Radmacher (formerly Granatino) v Granatino did not accept that there is necessarily a material difference between a pre-nuptial agreement and a separation agreement, and found that the court is entitled to overrule the agreement in either case. See also Practice Note: Implications of pre-nuptial agreements within proceedings for financial provision. The agreement may be taken into consideration as either part of all the circumstances of the case, or as conduct it would be inequitable to disregard. Post-Radmacher the court must have regard to whether the terms of the agreement are 'fair', see: The impact of Radmacher. An example of the application of the general principles, including Radmacher, is MB v EB (No 2), where the wife was a businesswoman from a wealthy family and the husband was an artist. The husband had a long history of mental health issues, aggravated by an accident which caused him to suffer a

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Post-nuptial agreements—client guide

Post-nuptial agreements—client guide This document provides general guidance regarding post-nuptial agreements. Your family lawyer will be able to provide specific advice based on your circumstances. What is a post-nuptial agreement? A couple who are already married or in a civil partnership may decide to enter into an agreement that shows what they intend to happen to their money and property if their marriage or civil partnership were to end. This may be because they didn’t enter into a pre-nuptial agreement before getting married, or where there has been a separation followed by a reconciliation. A separating couple may make an agreement on financial matters if they do not yet wish to divorce: this type of post-nuptial agreement is called a separation agreement, but similar rules apply. The legal rules about these agreements come from the usual laws that apply to divorce, and also a decision of the Supreme Court in 2010 (Radmacher v Granatino) where the court said: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’. Why enter into a post-nuptial agreement? Everyone has their own reasons for entering into a post-nuptial agreement. It may be that you and your spouse simply like to be as organised

Pre-nuptial or pre-partnership agreement

Pre-nuptial or pre-partnership agreement This Agreement is made [insert day and month] 20[insert year] Parties 1 [Insert name] of [insert full address] (AB), and 2 [Insert name] of [insert full address] (BC) Whereas (A) Intended [marriage OR civil partnership] This Agreement is made in contemplation of and is conditional upon the intended [marriage OR civil partnership] of AB and BC on [insert date] 20[insert year], or such later date as AB and BC agree ('the [marriage OR civil partnership]'). (B) Children [ [(i) ]AB and BC together have [a child OR children], [name(s) and date(s) of birth]. AND/OR [(ii)]AB has [a child OR children][name(s) and date(s) of birth] and BC is not the [father OR mother]. AND/OR [(iii)]BC has [a child OR children][name(s) and date(s) of birth] and AB is not the [father OR mother]. AND/OR [(iv)] [AB and BC are currently expecting to be parents [again ]together and [AB OR BC] is presently pregnant and anticipates giving birth on [date]. OR [AB OR BC] is presently pregnant and anticipates giving birth on [date]. [AB OR BC] is not the parent.] AND/OR [(v)] [AB and BC intend to have or adopt[ further] children after the commencement of the [marriage OR civil partnership] and the terms of this Agreement are intended to reflect that decision. OR Whilst AB and BC do not have children, they intend to have or adopt children during the course of the [marriage OR civil partnership] and the terms

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One party is English and the other Russian. They married in Romania and then moved to a non-EU country for one party’s work, while maintaining assets in England and Romania. Can a jurisdiction clause be included in the parties’ post-nuptial agreement stating that they agree that their divorce is to be dealt with in the courts of England and Wales and/or choice of law provision for the matter to be dealt with under English law? Would the position be different once the UK is no longer subject to EU regulations (ie post-Brexit)?

One party is English and the other Russian. They married in Romania and then moved to a non-EU country for one party’s work, while maintaining assets in England and Romania. Can a jurisdiction clause be included in the parties’ post-nuptial agreement stating that they agree that their divorce is to be dealt with in the courts of England and Wales and/or choice of law provision for the matter to be dealt with under English law? Would the position be different once the UK is no longer subject to EU regulations (ie post-Brexit)? In cases involving multiple jurisdictions, it may be prudent to seek advice from a local specialist lawyer in each of the jurisdictions with which the parties have a connection as to the implications of a post-nuptial agreement generally and as to jurisdiction clauses and/or choice of law provision specifically. See Practice Note: Marital and civil partnership agreements—international aspects, in particular section: Initial considerations. It is important that a post-nuptial agreement complies with the requirements of the jurisdiction in which the parties seek for it to be recognised. In England and Wales, it must, inter alia, be entered into freely and without duress with each party being afforded the opportunity to take legal advice. Post the Supreme Court decision in Radmacher (formerly Granatino)

Can a property adjustment order, made as a trust of land varying the parties’ beneficial interests in the family home, be varied? Can specific provisions within the order, such as date of sale or which spouse can purchase the property, be varied?

Can a property adjustment order, made as a trust of land varying the parties’ beneficial interests in the family home, be varied? Can specific provisions within the order, such as date of sale or which spouse can purchase the property, be varied? This Q&A considers whether the court has the power to vary a property adjustment order which had been made as a trust of land varying the parties’ beneficial interests in the former matrimonial home. It also considers whether consequential provisions such as date of sale or date for one spouse to buy the other out can be varied. Pursuant to section 24 of the Matrimonial Causes Act 1973 (MCA 1973) the court has the power to make a property adjustment order (see: Property adjustment orders—overview). A property adjustment order covers the following orders: • transfer of a property (MCA 1973, s 24(1)(a)) • settlement of a property (MCA 1973, s 24(1)(b)) • variation of a pre-nuptial or post-nuptial agreement (MCA 1973, s 24(1)(c)) • an order extinguishing or reducing the interest of either party under a pre-nuptial or post-nuptial agreement (MCA 1973, s 24(1)(d)) The jurisdiction to make an order under MCA 1973, s 24 arises after decree nisi, and an order under this provision will not take effect until after the pronouncement of decree absolute. Pursuant to MCA 1973, s 24A, the court has the power, where there is

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Family monthly highlights—April 2022

This month’s edition of Family highlights includes details of the Divorce, Dissolution and Separation Act 2020 (DDSA 2020) which took effect on 6 April 2022 and introduced significant changes to divorce law and procedure. The third Family Procedure Rules 2010 (FPR 2010) Practice Direction update of 2022 is also set out. Fact-finding hearings in private children law proceedings post-Re H-N are considered, together with committal for contempt where family proceedings had been recorded and the court’s approach to balancing reckless expenditure with the needs of the child in Schedule 1 to the Children Act 1989 (ChA 1989) cases. In addition to links to analysis of other key decisions, recently updated and new content is also detailed, including a new subtopic on DDSA 2020, containing new DDSA 2020 Client Guides and new Practice Notes that provide an introduction to DDSA 2020 and detail the changes to the law and procedure from 6 April 2022.

Maintenance agreements and consideration under IA 1986, s 339 (Jackson (as trustee in bankruptcy of the estate of Michael John Sheridan) v Song)

Restructuring & Insolvency analysis: A trustee in bankruptcy sought orders under section 339 of the Insolvency Act 1986 (IA 1986) on the basis that certain payments made in accordance with a maintenance agreement were transactions at an undervalue. The court considered the effect of the maintenance agreement in detail, particularly in light of section 34(1) of the Matrimonial Causes Act 1973 (MCA 1973), which states that any provision purporting to restrict the right to apply to court for a financial arrangement order was void. It was held that the bankrupt’s former partner had had a 50% interest in the property and that the non-paying partner had provided good consideration by entering into the maintenance agreement. The trustee’s application was dismissed. Written by Nora Wannagat, barrister at 9 Stone Buildings.

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