There’s never a one size fits all answer, but if you are the financially weaker party and have gone up the aisle without signing a pre-nuptial agreement, it’s not a good idea to limit your claims post marriage.
Fairness, like beauty, is in the eye of the beholder. After a thirty-year marriage, bringing up children, supporting your spouse in their business endeavours and making sacrifices along the way, why should you be limited to your basic needs when you have made a full contribution to the marriage?
If you want to limit a future spouse’s financial claims, it is better to do it pre-marriage rather than cross your fingers and hope they will sign an agreement post marriage.
Post-nuptial agreements can be seen as a “dry run” to a divorce and bring with them a duplication of legal fees. They may also cause resentment and anger which ironically leads to the demise of a marriage. The damage is done, the postnuptial agreement becomes a precursor to divorce and the weaker party is then divorcing against the backdrop of an agreement designed to limit their claims.
If you are asked to enter into a post-nuptial agreement by your spouse, you should, as a minimum requirement, be told why and seek legal advice. Whilst there may be genuine/valid reasons for the request being made (protect inheritance, compensate a spouse for giving up their career etc), a post-nuptial agreement can give valuable insight into how your spouse views the future of the marriage. Sadly, there is often a hidden agenda.
Post-nuptial agreements can be dangerous for a financially vulnerable spouse, who may not have the same bargaining power in negotiations. They often arrive with limited/opaque financial disclosure and the forensics are generally not as rigorous as they would be on a fully contested divorce. It is unwise to sign anything negotiated on this basis.
Finally, a note of caution for those who have managed to persuade a naive spouse to sign a post-nuptial agreement. They are not the insurer of all hazards and a spouse can still legally challenge the agreement upon divorce.
