Postnuptial Agreements

A Postnuptial Agreement is a document entered into by a couple after they have got married, setting out how they wish to divide their assets in the event of a divorce. 

Why would I need a Postnuptial Agreement?

This type of agreement may be useful if a triggering event has occurred from a Prenuptial Agreement (Prenup), such as an anniversary upon which the couple agreed to review their agreement, or a life-changing event such as the birth of a child or a change in health.

Is a Postnuptial Agreement legally binding?

There is no difference in legal status between Prenuptial and Postnuptial Agreements. Both are contracts that can be legally enforced. The divorce will hold ultimate discretion as to whether a nuptial agreement of any type should be upheld.

​You may decide to enter a Postnuptial Agreement because there was insufficient time to do so before your marriage or if your circumstances have changed during your marriage. For example, if an unexpected inheritance is received and you wish to protect this for the benefit of children from an earlier marriage. 

How does the court decide whether to uphold a Pre/Postnuptial Agreement?

 Certain requirements must be met for the court to uphold a nuptial agreement:

• The agreement must have been freely entered into by both parties
• The parties must have had a full appreciation of the implications of the agreement
• Both parties must have had separate and independent legal advice, or at the very least the opportunity to take separate and independent legal advice
• Both parties must have given full financial disclosure to one another
• The agreement must meet the needs of the parties, and
• It must be fair to hold the parties to their agreement in the circumstances prevailing at the time the court is asked to determine whether to uphold it.