What is a Post-Nuptial Settlement and is it
enforceable by the Court?

Joanne Houston, Senior Solicitor, Blake Lapthorn













A post-nuptial agreement is a settlement made on the parties to a marriage It will
include a settlement by will or codicil, a Separation Deed, a transfer of property and
income provision by periodical payments or from settled property. They are
generally upheld by the Courts as they are not considered contrary to public policy
unlike pre-nuptial agreements which take place before the marriage and are not
yet enforceable in the UK.

Both agreements can be considered by the Court in the event of a future divorce
and ancillary relief hearing as a 'relevant factor' to which the Court should have
regard when considering the assets available to be divided between the parties.

The terms of a post-nuptial agreement are generally upheld by the Court unless
they had been made in circumstances that cast doubt over their validity or there
are jurisdictional issues that prevent the Matrimonial Causes Act from being
applied. If suitable financial provision has not been provided for by the Agreement
it can be varied by the Court.  

Most recently the Court of Appeal considered the validity and effect of both
pre-nuptial and post-nuptial agreements made between husband and wife in the
case of Macleod v Macleod.

The Judges declined to declare pre-nuptial settlements binding and deferred the
decision to Parliament. The legal status of pre-nuptial agreements is being
considered by the Law Commission and in April 2009 the Court of Appeal will be
considering the validity of a pre-nuptial agreement made between A German
heiress and her ex-husband

The Court upheld the post-nuptial agreement in the Macleod case. It varied the
pre-nuptial agreement made before their marriage and was made in circumstances
where the marriage was in difficulties and before the Divorce Petition was issued.
The Court concluded that the wife had not been put under any pressure to sign it
that would affect its validity. The agreement had been negotiated over a long
period of time with every eventuality in mind and the couple foresaw that
separation was a real possibility.

Baroness Hale clarified the position in the McLeod case. "Post-nuptial agreements
are very different from pre-nuptial agreements. The couple are now married and
have obligations and responsibilities of the married state. A pre-nuptial agreement
is no longer the price one party may extract for his or her willingness to marry.
There is nothing to stop a couple entering into contractual financial agreements
governing their life together."

Post-nuptial agreements are an option to couples who wish to determine how their
assets should be divided in the event of their marriage breakdown, enabling them
to retain autonomy over their private assets and regulate their own financial affairs
without the Court's interference. Couples who have   entered into pre-nuptial
agreements may wish to turn these into post-nuptial settlements following
marriage to enhance the likelihood of their private agreement being upheld by the
Court should the marriage come to an end.

Contact:

For more information contact Jo Houston, a Senior Solicitor in the Family team at Blake
Lapthorn on 01962 844 440 or email joanne.houston@bllaw.co.uk.
All original content copyright (c) John Bolch 2008-9
DO YOUR OWN DIVORCE!
Family Lore
Joanne Houston