Laurika Nxumalo is a freelance academic research writer. She writes on a wide range of topics.
When people get married, they are often excited and jovial, looking forward to a happy ever after with their soul mates. Couples often prefer not to give a thought to gloomy matters such as divorce, death or separation; hence, they will avoid talking about prenuptial or post-nuptial agreements.
A prenuptial agreement is one of the things couples should discuss months before getting married. They should both decide on whether they want to enter into such an agreement or not.
A prenuptial agreement is a marriage contract that is legally binding and is signed by a couple prior to getting married to each other. The agreement sets forth the terms and conditions of the division of assets between the two in the event of death or divorce. A prenuptial is also used by one or both parties to clarify financial responsibilities while married, to avoid taking on the other`s debts or to safeguard a family business.
When a couple enters into a prenuptial agreement, they first have to cover the basics. Covering the basics means they have to go over the laws that govern marriage in the country they reside in; that helps in drawing up the relevant terms of the agreement and it will make matters fair. Secondly, both parties should fully disclose all assets that are under their names, including expected inheritances and pension funds.
Thirdly, it is advisable that each spouse makes use of his or her own attorney, so that in the case of a divorce each receives fair representation. Assets acquired before getting married are usually not included in the prenuptial. The couple`s children are also not included in the marriage contract. The contract cannot be used in custody battles if the couple ends up going to court over the custody of their children. The terms for spousal maintenance should also be included in the agreement. If the terms of spousal maintenance are not properly set out, one spouse could make irrational monetary claims against the other partner.
A prenuptial contract can either exclude or include the accrual system. In the event of a divorce, a prenup that is inclusive of an accrual system stipulates that everything that the couple accumulated while they were still married will be divided equally among them. Nothing that was acquired by spouses prior to their marriage will be shared with the ex-partner. A prenup that does not include an accrual system will stipulate that in the event of a divorce, one partner cannot claim anything from his or her ex`s estate.
As much as a prenuptial agreement is a safeguard, it is not well suited for all couples, especially if none of the partners has huge amounts of money to their name. It is advisable that prior to making the decision of entering into a prenuptial agreement, a couple seek advice from a marriage advisor.
A post-nuptial agreement is an agreement entered into after marriage. The agreement sets forth the terms and conditions of the division of assets between the two in the event of death or divorce. A prenuptial and post-nuptial have the same terms, the only difference is that one agreement is entered into before marriage and the other is entered into after marriage. Reasons a couple may decide to enter into a post-nuptial agreement include the following:
- In the case of one or both spouses bringing kids from a previous relationship/marriage into the current marriage; the post-nuptial agreement will ensure that those kids be entitled to certain assets or money through a bequest
- If one of the spouses takes on considerable debt after marriage, the marriage contract can protect the other spouse, depending on the terms the two have agreed on in the agreement
- If one spouse loses their job and can no longer make a financial contribution within the marriage, the terms agreed upon in the post-nuptial contract can help in resolving such financial issues
A post-nuptial agreement can also be used to set out the wishes of the couple on what should happen to the assets brought into the marriage in the case of a divorce or death. For the agreement to be considered legally binding in a court of law it has to be in writing, both parties have to enter into it willingly, all information contained in the agreement must be correct, and the terms of agreement must be fair towards both parties.
While money can cause numerous problems in a marriage, if all is managed correctly, things will go smoothly till death does the couple apart.