How to bomb-proof your postnuptial agreement

By MaritalMediation Staff on September 29, 2010

This title comes to us courtesy of Marilyn Stowe, a prominent British divorce attorney and blogger. She wrote up a detailed examination of the Musk postmarital case with the perspective of how the case would fair in the UK.

How can you bomb-proof a postnup?

Firstly, the parties must be independently advised before they sign up, even if they have entered mediation and produced an agreement in principal. The problem at that point is neither party may have had independent advice. In order for a postnup to stand up to a court’s scrutiny, both parties should be sent off to their own lawyers to ensure they really do want to sign it and demonstrate that they have the opportunity to gain their own independent advice. Anyone trying to steal a march on the other side runs a risk of it not being upheld. It is essential to remain calm and cool throughout or it won’t work.

Ideally there should have been full, frank and legally sworn disclosure of their financial positions incorporated into the post nuptial document, so it can be seen exactly what they are telling on another and what each party is relying upon. Again the less disclosure the greater the opportunity for argument.

There should be recognition by the parties of the advice they have received, both as to the nature of the agreement itself and the law governing it. Both parties should agree that they intend to be bound by the agreement and will only be able to vary it by executing another agreement, which will of course require the consent of both parties. They should also agree to be bound by English law given that English law is governing the settlement.

The agreed arrangements should be fully recited in the document so the parties know exactly what is going to happen to their own and joint property during the marriage and upon divorce. The more detail there is, including for example dealing with any taxation issues that may arise or provisions for the sale of property, the less likely it is to be set aside.

The full article is on Marilyn’s blog. Read more about postnuptial agreements in our archives.

Learn more about postnuptial agreements.

Tags: postmarital agreement, postnup, postnuptial agreement

Categories: News, Postnuptial agreements