A Brief Look at the History and Significance of Postnuptial

Posted by , on Mar, 2015

Most people, it is safe to say, have heard about prenuptial agreements. Contracts drafted and entered into before marriage or civil union, they can contain a wide variety of provisions directed at making arrangements in the event those relationships should fail. Traditionally, this was the most common way, for example, to assign particular pieces of property to one partner or the other, regardless of what should happen to a marriage.

In fact, however, prenuptial agreements are not the end of the story. Even couples who have entered into marriage without making such arrangements can, in some countries, later on enter into legally enforceable contracts of an analogous sort. Referred to as “Postnuptial,” these agreements are a relatively recent development, but they are becoming more common with every passing year.

Until recently, such arrangements were typically regarded as invalid. Because the legal institutions of marriage and civil unions carry with them certain bedrock assumptions about property ownership and the like, it was assumed that contracts entered into after such unions were formed could not subvert these principles. Over time, however, that juridical conviction evolved to include the possibility that, in certain cases, couples could enter into binding contracts of this kind after marriage.

Despite, that, Postnuptial are still viewed, generally speaking, with more skepticism by the courts than their prenuptial siblings. The ones that are accepted most readily, in most states, are those that assign property in particular ways after one partner to a marriage or civil union passes away. In these cases, courts tend to be somewhat lenient, allowing a relatively wide latitude.

Agreements of this kind that take effect upon separation or divorce, on the other hand, tend to be harder to enforce. That is not to say they will always be considered presumptively invalid, but courts are more likely to view them with skepticism and prefer to defer to the prevailing precedent regarding property rights and the like. Wanting to ensure that no party is taken advantage of, in fact, courts tend to be even less likely to uphold contracts entered into after marriage that attempt to limit alimony and child support.

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Posted by , on Mar, 2015

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