Although divorce rates are declining, more than 40% of marriages end in divorce (more than 100,000 couples divorce each year in England and Wales), and with one in every five men and women seeking to end their marriage having already been through one divorce, it is perhaps not surprising that more and more people are seeking to safeguard their individual positions by entering into a pre-nuptial agreement prior to marriage or securing protection by drawing up a post-nuptial agreement.
For married couples, especially those with children, drafting a post-nuptial agreement that is agreed upon by both parties as a fair statement of their preferences can save a lot of potentially detrimental stress if the relationship fails.
A post-nuptial agreement must be recognised as fair in order to be binding. The court considers the following factors while deciding whether to enforce a post-nuptial agreement:
- the conduct of the parties leading up to the agreement;
- the circumstances surrounding the making of the agreement;
- whether there was undue pressure by one side or exploitation of a dominant position to secure an unreasonable advantage; and
- the interdependence and mutual influence that existed between the parties.
The government has revealed its desire to give pre- and post-nuptial agreements legal effect. A well-drafted agreement, made freely and with the assistance of legal guidance, is highly compelling. However, such agreements do not have legal force at the moment.
