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What's New? > A Cautionary tale on second-time around Pre-Nups, Post-Nups and Will considerations

A Cautionary tale on second-time around Pre-Nups, Post-Nups and Will considerations

Published: 22nd March 2017

A Cautionary tale: Why client's embarking on second-time marriages should consider Pre-Nups, Post-Nups and Wills.

The recent case of Wodzicki v Wodzicki [2017] considered a daughter appealing a decision that involved a house that she and her family had lived in for nearly 30 years.  The house in question was owned by her father and his second wife. The daughter argued that a promise had been made by her father that once a loan had been paid off the house would be transferred to her. 

Unfortunately, her father died before that occurred and his wife claimed not to be aware of his promise.  The daughter lost her full claim to the family home which, regardless of the fact, must have been devastating.

It is important to note that, had the couple clearly considered and defined their assets and their intentions for them, this situation could have been avoided with a simple will.  A will would have been much clearer and much less costly than the eventual Court case that ensued.  Furthermore, it would have clearly laid out the intentions of the father and avoided this painful family rift.

It is now more common for people to enter into subsequent marriages later in life.  When this happens either one or both spouses often bring with them children and extended family commitments from previous relationships.   Complications and confusing future conversations can be avoided by preparing a Pre-Nuptial Agreement before the wedding day. 

Although Pre-Nuptial Agreements can be prepared for any couple that is about to marry, they can be particularly wise for those marrying a second time as they enable a way to protect pre-existing assets that have been accumulated prior to that marriage.  Often the older you are, the more assets you have.

But if you miss out on a Pre-Nuptial Agreement do not despair: there is always the possibility of a Post-Nuptial Agreement.  These are implemented at any point during marriage and can be particularly useful if circumstances have changed, for instance if a new property has been purchased or an inheritance received.

Always remember that Pre-Nuptial and Post-Nuptial agreements are persuasive, but not 100% legally binding.  However, a Court will not easily overturn one that is well thought-out and has clearly considered future eventualities.  Furthermore, all agreements should be reviewed on a regular basis, especially in the light of life or financial events such as the birth of a child, buying a house or embarking on a new investment strategy.

Bearing this in mind, couples should always think about having a will alongside long-term estate planning.  This will enable them to protect both their own assets and wishes, but those of their extended familial commitments as well.

If you require further information on the above issue or any other family related matter, please contact a member of our Family Law team at your nearest office by clicking here.

This article aims to supply general information, but it is not intended to constitute advice. Every effort is made to ensure that the law referred to is correct at the date of publication and to avoid any statement which may mislead. However, no duty of care is assumed to any person and no liability is accepted for any omission or inaccuracy. Always seek our specific advice.