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Blog post: How do pre-nups work?

Date:17 JAN 2019
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Pre and post-nup agreements are designed to settle what will happen to your assets in the event of a divorce. They can help to alleviate the emotional and financial costs of litigation for you if your relationship breaks down, according to James Ferguson, partner and head of family law, and Katie Male, associate, at Boodle Hatfield.

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In many cases, as soon as the pre-nup or post-nup is signed it is put away in a drawer or your solicitor's archives and forgotten about. This is perfectly normal, but you should bear in mind the agreement might oblige you both to take certain steps when you come to acquire property during the marriage, for example to sign a declaration of trust setting out in what proportions it is owned. One eye should be kept on the relevant provisions to ensure that their intended effect is achieved.

The agreement will only really become relevant, however, in the event of a subsequent divorce, at which point the terms of the agreement will dictate the outcome of the case to a greater or lesser extent depending on the "fairness" of the agreement at the time of divorce and whether certain safeguards (mentioned above) were observed at the time of making the agreement.

If you do have a pre-nup or post-nup, it is a good idea to keep this under review during the course of the marriage, especially if there is any significant change to your circumstances, for example if you have children or the value of a family asset changes dramatically. If there is such a change, we can advise you as to whether the agreement is likely to be deemed fair in the current context and, if not, how it might be updated to increase its effectiveness.

The greatest threat to the effectiveness of a pre-nup or post-nup may be a failure to allow for the financially weaker spouse's reasonable needs to be met following divorce. Your family lawyer will be able to advise you on what sort of provision you might consider making for your spouse in order to ensure this requirement is met.

James Ferguson, partner and head of family law
Katie Male, associate
Boodle Hatfield.

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