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January 22, 2014updated 11 Jan 2016 1:44pm

Post-nups can be as good as pre-nups

By Spear's

With Valentine’s Day just around the corner, as shops and adverts are all to quick to remind us, we’re getting into proposals season. Along with the church, dress and flowers, an increasing number of couples are choosing their pre-nuptial agreements, even if that involves picking up the phone to solicitors to talk divorce in the midst of the planning the most romantic day of your life.

In an ideal world, any couple who considers a pre-nup should do so as early as possible and individually instruct their own lawyer so that the process can get off the ground. Some couples seek to agree a framework that solicitors can then draft into an agreement and ‘legalise’ as required. Other affianced pairs prefer to keep the entire process at arm’s length and ask their advisers to come to an agreement between themselves.

Whichever way a couple chooses, if assets are significant and/or complicated, it is worth remembering that such matters can take months rather than weeks, and this should be factored into the planning process. From time to time I receive a call from a soon-to-be bride or groom just a week or so before the wedding with a last-minute mentality in mind.

Read more on Francois Hollande and Valerie Trierweiler’s separation rights from Spear’s

But, importantly, the closer a couple gets to the wedding, the easier it may be for one party to later argue that an element of duress existed, and that they only signed the agreement because they knew the wedding would not take place otherwise. The courts have found that in such circumstances, parties should not be bound by what has been agreed.

Therefore, a word of warning to last-minute planners: with rushed consideration of a pre-nup negotiated at the eleventh hour, finishing touches made at the rehearsal dinner and the final version signed on the vestry table, the pre-nup may hardly be worth the paper it is written on.

Rupert Murdoch and former wife Wendi (pictured above) entered into three nuptial agreements in all: one prior to their wedding in 1999 and two during their marriage following the birth of each of their daughters.

Their subsequent divorce and financial negotiations were widely reported to be concluded swiftly and amicably, and the fact they had already contemplated and agreed how their assets should be split undoubtedly made for less of an ordeal.

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Go for a post-nup

For a couple who have run out of time, choosing to enter into a post-nuptial agreement soon after the wedding can allow parties breathing space and negate any arm-twisting claims that might be made if something was rushed through.

Of course, this alternative is an approach that should be an agreed course of action before the wedding takes place and I have advised couples to sign the same agreement before and after the wedding when timing is tight, just to be on the safe side.

Crucially, agreements made after marriage have no more or less weight in law than those entered into before the wedding actually takes place and, with the pressure now off, their enforceability may in fact be easier to argue.

However, even when an agreement is entered into after the wedding has taken place, a suggestion of coercion can still undo its enforceability. In a case in 2007, a wife claimed that following an affair her husband had forced her into a ‘take it or leave it’ agreement which she signed seven years into her marriage. The wife argued she should not be held to it.

In these circumstances the court found that she was pressured into doing so in the throes of emotional meltdown, and at a time when the parties had been habitually arguing. As there had been no time for careful reflection, the wife had been pressurised and bullied, and the agreement was disregarded by the court.

A pre- or post-nuptial agreement in England and Wales still does not strictly bind parties, and no lawyer should provide you with a cast iron guarantee that a court will later enforce it. Nevertheless, the well-publicised case of Radmacher v Granatino established that a well-drafted, well-considered agreement – following exchange of full and frank disclosure with each party obtaining separate and independent legal advice – should prove very persuasive to the court in appropriate cases.

The Law Commission is the process of publishing its final report on nuptial agreements, and this guidance will be well received by family lawyers, and the clients we advise.

And so, having already married, there are no legal obstacles to parties later safeguarding their financial positions following the wedding with a post-nuptial agreement. However, the elements of time, careful reflection, and independent legal advice remain essential components of any well-drafted agreement.

Hazel McNaught is an associate at Stevens & Bolton LLP

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