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Most people will be familiar with pre-nuptial settlements, or
'pre-nups', from news stories about celebrity divorce
cases. However, few will be familiar with the term
'post-nuptial settlements'.
Couples enter into pre-nups before they get married. The
agreement determines how their assets will be shared if they end up
divorcing. Pre-nups are increasingly used, not just in first
marriages, but second and third too. They were regarded both as
against the public policy of supporting marriage and as ousting the
Court's jurisdiction, and have not therefore been enforced by
the English Courts.
However, this year, the Supreme Court upheld a pre-nup (in
Radmacher (formerly Granatino) v Granatino). The Court held that a
pre-nup is one of the factors to be taken into account in deciding
what is fair. In view of the facts of this particular case it was
upheld.
In Jersey, as in the UK, such agreements will not necessarily be
upheld, but will be a very relevant consideration for the court
when deciding how to distribute the assets of a divorcing couple.
Well negotiated pre-nups, providing for the couple's changing
circumstances, made with the benefit of timely legal advice and
following full financial disclosure, are increasingly likely to be
upheld.
A post-nuptial settlement (post-nup) is one made after the
marriage has taken place. A UK court case (MacLeod v MacLeod)
recognised that post-nups are made between people who already have
the protection of being married and, therefore, there is no reason
why they cannot enter into binding contractual agreements governing
what should happen to their assets if the marriage ends in
divorce.
The case provides clear advice to those who wish to enter into
agreements to cover the eventuality of a marriage ending in
divorce. They may do so in the knowledge that a well prepared and
executed post-nup will, in all likelihood, serve the purpose for
which it was intended.
To be upheld the post-nup must comply with Jersey Contractual
law, e.g. that it is not entered into by one party under undue
influence, it must continue to be fair, despite changing
circumstances, and must make proper arrangements for any
children.
Under the Matrimonial Causes (Jersey) Law 1949, the Royal Court
is expressly provided with the power to vary post-nuptial
settlements so great care must be taken to 'get it
right'.
There are a number of valuable lessons in the MacLeod case to
help get it right, including:
the best way to ensure that a pre-nuptial agreement will be
binding is to confirm its terms in a post-nuptial settlement after
the marriage
both parties must have independent legal advice
there must be full and frank financial disclosure
It must be fair
It must provide for children
It should make provision for changing circumstances
Our advice is that such agreements should be constantly
reviewed, certainly at all significant points of the marriage as:
birth of a child, inheritance, retirement, making wills and,
perhaps, every fifth anniversary of the marriage.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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