Pre-Nuptial versus Post-Nuptial Agreement

Before marriage you can, and even should, have a written pre-nuptial agreement, but it is not conditional upon marriage. If this agreement is done before the formal marriage there is no need for a “legal certification” although it is highly recommended to have it done by a notary. The legal costs are reasonable and it is not a time-consuming process.

If the couple does not have a pre-nuptial done before the marriage, the process is more complicated. Having a pre-nuptial is one thing but having a post-nuptial is another story.

In the case of a post-nuptial, the process is more expensive and the agreement is more than just a “formal one”. The couple must present the written agreement to the family court and it is almost impossible to do it without proper legal representation by a lawyer. In such cases it is very possible the judge will not accept all the clauses “as is” and may order changes in the agreement.

The agreement is submitted to the court together with a written request for approval and payment of a fee (remember: the legal system in Israel is not one of the free accesses). Both the husband and the wife will appear before a judge, charged with the responsibility of ascertaining whether or not the agreement was freely entered into and its legal consequences fully understood.

In the end of this process, which could take a few months, the couple will be granted what they want: The legality of the agreement but nothing else. This agreement is a “tool” to be used on one occasion only, when the marriage is over.

No amendments are allowed without another hearing, in which case the process will be the same as the first one.

A pre-nuptial agreement should be done in cases where there is a reason and not as a “normal” procedure before the wedding. The reasons vary between financial, as when one of the couple brings with him a large sum of money or property (such as an inheritance), or when a “psychological” problem arises before the wedding (when one of the in-laws is afraid of losing the money or property he may had given as a gift to his heirs, such as in a case where there is a lack of trust), or any other “special situation”.

In case of doubts it is better to act cautiously and have a pre-nuptial agreement “just in case”.

Sincerely,
 

Tzvi Szajnbrum, Attorney at Law