Postnup

[ThePinkNinja]

Hi,
Any advice on the most affordable way to make a "legally binding" post nuptial agreement?

Do we need to see lawyers and have papers drawn up, or would a document signed by us both and witnessed by other stand up in court?

Any advice greatly received :)

x

[ImperialBlether]

What do you mean, post nuptial? You're already married? If so, can't you just have separate bank accounts?

[CogitoErgoSparklers]

You need proper legal advice. In the case of pre-nuptial agreements, you have to be able to demonstrate that you are both acting of your own free will, independently and are not being pressurised or coerced by the other. It also has to be shown that the terms of the agreement are reasonable and not overly prejudicial either for or against one or other party. There is also a time factor... i.e. the longer that elapses between the agreement and any break-up, the less influence it would have on the outcome of any settlement and the more it would fall into line with current norms. Never heard of a post-nup... sorry.

[dequoisagitil]

I don't think pre-nups actually give any protection in England & Wales. Possibly Scotland.

[CogitoErgoSparklers]

Radmacher v Granatino has meant courts are giving more weight to pre-nuptial agreements than in the past. However there are many conditions attached.

[Yellowtip]

Radmacher is common sense and is relevant to both pre and post nups. It's a very important case and fairly easy to read.

[ThePinkNinja]

Thanks for the info.

Yes we are married (9 years in a few weeks)

We've made some agreements about what would happen if we were to split (barring affairs) and it makes sense (I think) to have it formalised.... Interesting to know that pre nups aren't even followed ....

If anyone has dealt with post nups advice still greatly received :)

[CogitoErgoSparklers]

What do you mean 'barring affairs'?

[ThePinkNinja]

I mean we have made the agreement, and as long as no one cheats, then the agreement is to stand, otherwise, we would have different views.

[SirSugar]

Why bother? If you have both agreed then if you agree to split the agreement should stand.

[CogitoErgoSparklers]

I'm not certain but I think you'd find that you wouldn't be able to legally frame an agreement that was conditional on everyone staying faithful. To a large extent, the law doesn't actually care why you are divorcing or who's fault it is.... it's still a 50/50 settlement. So if you were to make your agreement punitive in some way for unfaithful behaviour, I don't think that would stand up as being 'reasonable'

[ElizabethX]

What a strange arrangement if you don't mind my saying

You already have a post nup setup in place, called the divorce laws

If someone I was married to wanted a postnup that departed from where thsoe would come out - in their favour - I would assume they were contemplating divorcing me. unless this is to update a previous ageing prenup - but maybe that's not an 'unless' at all now I think of it.

?

[CogitoErgoSparklers]

If I was married to someone who wanted a post-nup framed that 'if you're unfaithful, you get nothing'.... I'd think they were trying to control my behaviour by threatening punishment for stepping out of line.

[ElizabethX]

IANAL but wouldn't that be unenforceable anyway?

[CogitoErgoSparklers]

Almost certainly, that's why the OP needs proper legal advice because any casual arrangement that didn't fulfil the criteria would be ignored

[Yellowtip]

Divorce laws can throw up stupid outcomes ElizabethX, so post nups can be a very good idea.

Pre nups are followed OP. The 'conditions' are fairly common sense conditions, so not a great bar to enforcement.

[ThePinkNinja]

Wow. It all went a bit out of context.

No one is trying to control anyone or worried about cheating.

We have a happy, healthy, normal 9 year marriage.

Having a prenup or postnuptial IMO doesn't have to be so cynical

It is not really about being "contingent on being faithful", but as the agreement would favour one of us (me), it wouldnt be fair for it to stand if I were unfaithful and left him for that reason.

The agreement is based on what we have decided is right for our family and how things should follow if things were ever to deteriorate.

We don't believe we will split, but no one ever thinks they will, or why bother getting married?

We are both just v sensible planners, and would want to always ensure a level of civility. And some specific outcomes should we ever decide this hasn't worked out.

Thanks to those offering genuine advice.
I know it can be tempting to assume the worst or "stir the pot".
:)

[SoSoMamanBebe]

Weird. If you both agree why do you need a post nup. Can't you just write it out in bullet points to remind yourselves?

[CajaDeLaMemoria]

You will need to get legal advice, unfortunately - a proper appointment. The first issue will be the pre-nup - you'll need to tell the solicitor what the current agreement is, and check that all of it is fair. You'll also need to pass "checks" such as neither of you being coerced into signing etc.

The second issue is that you might find you cannot have a post-nup that is dependant on behaviour. I'm 95% sure that this would not be legally binding, and that if you made the agreement it would stand whether you cheated or not. If the solicitor does agree to write it in, it'll probably be on the condition that you accept it may not be accepted by the judge, and be over-ruled. You'll also need to formally declare what will count as cheating, and how you would prove this. Can he avoid the post-nup agreement if he thinks you are cheating but has no proof? Or if he finds suspicious texts but no actual proof? Or do you need to admit to the cheating?

I'm fairly early in my law career, but these are the points that are standing out to me at the moment.

I hope this helps!

[Yellowtip]

Caja a pre nup is entered into prior to a marriage. The OP is married. This would be an anticipatory post nup. Legal advice is not crucial btw, it depends on the couple. The husband in Radmacher didn't have independent legal advice before he signed the pre nup but the Supreme Ct. still held it to be binding.

[Yellowtip]

An agreement between two perfectly intelligent, educated, informed parties also doesn't need to be 'fair'. The Supreme Ct. said taking away their autonomy in that sort of case would be extremely arrogant of the law. Essentially, provided all relevant facts are known to the couple at the time an agreement is drawn up and there's no duress, it's up to them. Quite right too.

[SoSoMamanBebe]

Yellowtip, that's an interesting post. Why do you say 'quite right too'? I would have thought the law was designed to be fair to protect both parties? Happy to be corrected.

[Collaborate]

This is an interesting and informative article on the Radmacher case:

www.familylawweek.co.uk/site.aspx?i=ed57001

Post-nups are stronger than pre-nups as you remove from the equation the suggestion that one or other af the parties was coerced into signing it with the threat of the wedding being cancelled.

[Yellowtip]

It's simply that there is no good reason for the law to intrude on private lives where two parties to a marriage understand the implications of their financial arrangements and agree to divvy them out as they see fit. It would be a huge intrusion if some judge then decides that he or she knows best. Family law has thrown up lots of hard, or 'unfair' cases, despite the idea that it's supposed to be elastic enough to provide for individual circumstances. Some lawyers can be a bit bossy and some clients just think that they have to go along with it, but if they can agree with their partner then they really don't have to. They don't even need to shell out for a lawyer. I hope that judges locally are already doing what Radmacher says and that cases don't need to go to appeal, because that can be prohibitively costly. It's a very clear and common sense case.

[Yellowtip]

Cross-posted.