Blog

One of the most common questions I get from clients enquiring about Contracting Out Agreements (Pre-nups) is, “Do I need a new Contracting Out Agreement every 2 years”.  Many tell me that they have heard from friends that the Pre-nup is no longer valid after 2 years.  

I’m not sure where this comes from but I think it might be from people hearing about Pre-nups being overturned in court because circumstances have changed.  Under section 21J of the Property (Relationships) Act, a Court may set a Pre-nup aside if it would cause serious injustice.

For example, when Mary and John started their relationship, John had a house of his own and Mary had no assets.  They entered in to a Pre-nup to ensure that John’s house remained his home should they separate.  The Pre-nup also stated that Mary and John’s incomes will be their separate property.

Then, after 40 years of marriage with Mary supporting John through medical school and then Mary staying home looking after 3 kids while John focused on his career, John and Mary decide to separate.  At this point, John not only owns the original home but also owns a beach home and has $500,000 in savings.  He also has a well paying job as a doctor.  Meanwhile, Mary chose not to study but instead worked a menial job to support John while he studied and then she stopped working to take care of their children.  This means that after 40 years of sacrificing her own needs, Mary has no assets and no career.

It would be seriously unjust the John walks away with everything and Mary has nothing.  In this case, a court would very likely overturn the Pre-nup because of the serious injustice that this would cause Mary.

This is why I recommend reviewing Pre-nups every 2-3 years and to talk to your lawyer when circumstances change such as having children.  A simple one page Supplementary Agreement can be drafted to go along side the original Pre-nup to ensure that the Pre-nup is still valid and does not get overturned in court should you separate.

Therefore, the answer to the question is, No, you don’t need a new Pre-nup every 2 years.  It is, however, recommended to review the Pre-nup every 2 years and to talk to your lawyer if your situation changes.