PandaTip: Note that the legality and enforceability of postnuptial agreements varies from state to state and from country to country. This postnuptial agreement template provides a good starting point but you should take care to ensure that it will be enforceable in your state or country and, if in doubt, legal advice should be sought. When drafting you should note this general rule: terms which are reasonable and fair to both parties are more likely to be enforceable than terms which create a significant imbalance between parties. In general, agreements of this sort are more likely to be enforceable if the weaker party (if any) has received independent legal advice prior to signing.

Postnuptial Agreement Template

This Postnuptial Agreement (the “Agreement”) sets out the terms and conditions upon which [HUSBAND NAME] (the “Husband”) and [WIFE NAME] (the “Wife”) shall manage their financial and legal affairs on the event of their separation or divorce (together, the “Parties”).

PandaTip: In the case of same-sex marriages we suggest amending the above (the “Husband”) and (the “Wife”) to the full names of the husbands or wives (as the case may be) and replacing these references throughout.

WHEREAS: The Parties have been married since [DATE] (the “Marriage”).

WHEREAS: The Parties are living together.

PandaTip:If the parties do not live together you should amend or remove this clause.

WHEREAS: The Parties are each desirous of formalising their respective joint and several financial and legal rights, obligations, liabilities and property rights in the event of their separation, divorce or in the event of annulment of their Marriage.

WHEREAS: The Parties intend this postnuptial Agreement to become effective immediately.

WHEREAS: The Parties have made a complete and accurate disclosure of their intended separation of assets and liabilities (Schedules A and B).

NOW, THEREFORE, IT IS HEREBY AGREED as follows:

1. DEFINITIONS. In this postnuptial Agreement:

1.1 “Income” shall mean any income howsoever arising due to the commercial activity, work, employment, endeavours, skills, passive holding of assets, dividends, inheritance, pensions, interest, rent, inheritance, investments, property, or arising from any other source.

PandaTip:If you wish to separate different sources of income you should delete this subclause and renumber the following subclauses.

1.2 Unless it is evident from the context and having regards to the generality of this postnuptial Agreement that a clause intends to mean otherwise: words denoted in the singular only shall include the plural and vice versa; words denoted in any gender shall include all genders; and, terms denoting people or persons shall include both natural and legal persons (such as corporations) and vice versa.

1.3 The heading names in this postnuptial Agreement are provided as reference only and do not form part of this postnuptial Agreement.

1.4 This postnuptial Agreement may be executed in both English and other languages. If there is a conflict between this postnuptial Agreement in its various translations the English version shall prevail.

1.5 The illegality or unenforceability of any clause (or part thereof) shall have the effect of voiding that clause (or part thereof) only and not the entirety of this postnuptial Agreement.

2. EXCLUSIVE JURISDICTION OF THIS AGREEMENT Both Parties agree and declare that in the event of their separation, divorce or termination of their Marriage (including by annulment) they will submit to the exclusive jurisdiction of this postnuptial Agreement and irrevocably waiver the right to make any claims arising out of the Marriage against the estate of the other except under this postnuptial Agreement.

3. DIVISION OF PROPERTY Both Parties hereby agree:

3.1 That in the event of separation, divorce or the annulment of the Marriage the Wife shall transfer to the Husband all that property and Income and any interest in said property or Income listed in Schedule A and shall waiver, renounce and relinquish any and all rights over said property in favour of the Husband.

3.2 That in the event of separation, divorce or the annulment of the Marriage the Husband shall transfer to the Wife all that property and Income and any interest in said property or Income listed in Schedule B and shall waiver, renounce and relinquish any and all rights over said property in favour of the Wife.

3.3 That any property not expressly included in Schedule A and Schedule B shall be divided by agreement between the Parties at the time of separation, divorce or annulment and if agreement cannot be reached between the parties then the matter shall be determined by an arbitrator in accordance with clause 11.

3.4 that the above clauses (3.1, 3.2 and 3.3) shall apply notwithstanding any investment by one Party of time, effort or money in the maintenance, improvement or other betterment of the property of the other Party.

3.5 that the above clauses (3.1, 3.2 and 3.3) shall apply notwithstanding any behaviour, agreement, promise or course of action which purports to confer the rights or obligations of one Party upon the other Party unless it be formalised in accordance with clause 8 of this postnuptial Agreement.

4. DIVISION OF DEBTS AND OBLIGATIONS  Both Parties hereby agree:

4.1 That in the event of separation, divorce or the annulment of the Marriage the Husband shall assume full and sole responsibility for those debts, obligations or other liabilities set out in Schedule A and agrees to indemnify and keep indemnified the Wife against any and all actions of losses brought in respect of those debts, obligations or other liabilities.

4.2 That in the event of separation, divorce or the annulment of the Marriage the Wife shall assume full and sole responsibility for those debts, obligations or other liabilities set out in Schedule B and agrees to indemnify and keep indemnified the Husband against any and all actions of losses brought in respect of those debts, obligations or other liabilities.

5. INTENTION TO FORM BINDING RELATIONS It is agreed that:

5.1 The Parties warrant that they have thoroughly read and understood every clause in this postnuptial Agreement.

PandaTip: This is a likely area for attack and so the Parties may wish to initial this clause, to show that it has been read and understood.

5.2 The Parties warrant that they are aware that this postnuptial Agreement is a binding legal document and that they have each been given adequate time to consider the consequences of signing it.

PandaTip: This is a likely area for attack and so the Parties may wish to initial this clause, to show that it has been read and understood.

5.3 The Parties warrant that they are entering into this postnuptial Agreement entirely of their own free-will and volition and expressly declare that they are acting entirely free from any kind of influence, interference, pressure (financial or otherwise), duress or undue influence from any third-party whatsoever.

PandaTip: This is a likely area for attack and so the Parties may wish to initial this clause, to show that it has been read and understood.

5.4 The Parties declare that they have each had the opportunity to take legal advice in connection with entering into this postnuptial Agreement and has either a) done so, or b) deemed it not necessary to do so.

PandaTip: This is a likely area for attack and so the Parties may wish to initial this clause, to show that it has been read and understood. If either or both of the Parties have taken legal advice (whether jointly or individually) this should be included in the above clause as it will add validity to this postnuptial Agreement.

5.5 The Parties hereby expressly waiver their rights to dispute this postnuptial Agreement on the basis of lack of autonomy, duress, undue influence, lack of volition, or lack of understanding.

PandaTip: This is a likely area for attack and so the Parties may wish to initial this clause, to show that it has been read and understood.

5.6 Both Parties warrant that this postnuptial Agreement is fair and accurately reflects their intention generally and with regard to past and future assets and liabilities.

6. OTHER WARRANTIES

6.1 Both Parties warrant that they have the necessary power and approval to enter into this postnuptial Agreement.

6.2 Both Parties warrant that they are not aware of anything in their reasonable control which will or could have an adverse effect upon their ability to perform their respective obligations hereunder.

6.3 Each Party warrants that there is no litigation currently in progress, likely to be commenced or threatened which could adversely affect the other Party’s position.

6.4 The failure or delay by either Party to enforce any term of this postnuptial Agreement or to act upon a breach of any term shall not constitute a waiver of their rights.

6.5 Each Party expressly and irrevocably warrants they they have thoroughly read and understood the contents of both Schedule A and Schedule B.

6.6 Both Parties warrant  that nothing in this postnuptial Agreement shall affect any rights of any children of the Marriage (whether biological or adopted) including the right to support.

7. DURATION This postnuptial Agreement shall commence on the date of its execution and shall have effect indefinitely unless it is cancelled by the express agreement in writing of both the Parties pursuant to clause 8.

8. VARIATION Any variation to this postnuptial Agreement shall be made in writing and signed by both parties.

9. NOTICES Any notice served under this postnuptial Agreement shall be made in writing and shall be considered served if it is handed to the other Party in person or delivered to their last known address or any other such address as the Party being served may have notified as his address for service. All notices shall be delivered in English.

10. CONFIDENTIALITY Each Party irrevocably declare that they will keep the contents of this postnuptial Agreement confidential and agree to indemnify the other against any and all losses arising from their making of the existence of this postnuptial Agreement or its contents known publicly.

11. GOVERNING LAW, DISPUTES AND ARBITRATION It is agreed that:

11.1 The postnuptial Agreement is made under the exclusive jurisdiction of the laws of [STATE].

11.2 Disputes under this postnuptial Agreement shall be subject to the exclusive jurisdiction of the courts of [STATE].

11.3 Notwithstanding the terms of 11.2 both Parties agree that in the event of a dispute they will enter into arbitration before the International Chamber of Commerce before a single arbitrator whose decision shall be final.

Signed and executed this [DAY] of [MONTH] [YEAR].

Signed by the Husband                    Signed by the Wife

In the presence of these two witnesses:

Signed by First Witness                    Signed by Second Witness

PandaTip: Provide the full names and address of witnesses in case they need to be contacted later.

Before me [NOTARY]

Signature of Notary

PandaTip: There may be specific rules about how postnuptial agreements need to be executed in your state or country. We have adopted a “belt and braces” approach when drafting this template postnuptial Agreement insofar as that execution requires the presence of two witnesses signing before a Notary Public (or Attorney-at-Law). It may be that your state or country requires less formality or it may specify a different manner of execution. If you are in doubt about this you should seek advice regarding the correct manner of execution. In general, agreements which have been witnessed by independent witnesses and signed before a Notary Public or Attorney are more likely to be upheld since it proves to a Court that the parties genuinely signed the document and that they also ought reasonably to have known it would have serious legal consequences.

Schedule A

PandaTip: This page should include a statement of the Husband’s assets and liabilities. The usual form for such a schedule is a spreadsheet. This Schedule should be initialled by both Parties.

List of Property Due To Husband

List of Debts and other Obligations Due To Husband

Schedule B

PandaTip: This page should include a statement of the Wife’s assets and liabilities. The usual form for such a schedule is a spreadsheet. This Schedule should be initialled by both Parties.

List of Property Due To Wife

 

List of Debts and other Obligations Due To Wife

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