Postnuptial Agreements

If you are already married and you want to try and ensure that your assets or wealth are protected in the event of a future divorce, then a post-nuptial agreement (sometimes called a ‘postnup’) is one way of achieving this. But what is a postnup? Why do I need a postnup? And is a post-nuptial agreement legally binding? Keep reading to find out everything you need to know about post-nuptial agreements in our guide.

What is a post-nuptial agreement?

A post-nuptial agreement works in a similar way to a pre-nuptial agreement. It is a contract that you draw up with your spouse which outlines how your property should be divided if you were to legally separate or divorce in the future, or when one of you dies.

As part of the agreement you will both ask the court to make a ‘consent order’ which separates your financial assets (property, inheritance, pensions, assets, etc) in accordance with the post-nuptial agreement.

What can a post-nuptial agreement cover?

A post-nuptial agreement can include a wide range of issues, including:

  • the division of your pension assets
  • the division of any assets you already own, either in your sole or joint names
  • an agreement for spousal maintenance
  • the division of any property acquired after you sign the postnup agreement
  • the division of any future inheritance received by either spouse
  • the division of any future gifts received by either spouse
  • what would happen to your marital home
  • payment of any debts that you hold in your sole or joint names
  • arrangements for life insurance
  • what you will leave to your spouse when you die.

A post-nuptial agreement can also include arrangements for your children. Indeed, a court is unlikely to uphold and postnup that doesn’t take the needs and welfare of your children into consideration.

Once your post-nuptial agreement is drawn up, you should review it on a regular basis. Your circumstances can change; for example, you may receive a significant inheritance, or you may have children that you hadn’t originally planned for.

Why should I consider a post-nuptial agreement?

When you make a post-nuptial agreement you are already married. So, you need to think about what you consider to be a fair outcome when you sit down to draft the agreement.

You then need to agree this with your spouse. You should approach them sensitively about this subject and explain calmly what you want to achieve and why. If they won’t sign the agreement, you could actually end up damaging your marriage.

A postnup can both address the current circumstances of your marriage and also provide for any future changes that may occur. And, when it is in place, you can make changes to it as your circumstances dictate – assuming you both agree.

There are several reasons why you may want to consider signing a post-nuptial agreement:

  • to protect assets or property that you bring to the marriage. For example, you may want to ensure that a property you bring to a second marriage passes to your children on divorce, rather than to your new spouse
  • to protect you if you know you are going to be taking time out of employment, for example to care for children. You may want to ensure you will be financially secure in the event of a later divorce
  • to reduce the risk of arguments in court if your marriage was to end
  • to reinforce the terms of a pre-nuptial agreement you signed before you got married
  • to protect yourself if you have a sudden increase in wealth and you want to be sure what happens to this if your marriage were to end
  • to remove the money issue when it is causing problems in your relationship. A financial imbalance in your relationship could cause friction and unease about ‘who owns what’. A postnup can deal with this matter, leaving you to get on with your marriage
  • you have decided to separate, but not yet (for example if you are waiting for your children to leave school). If you know you are going to split later on you may want to get the financial settlement agreed now so the money issue isn’t playing on your minds while you stay together.

How do I make a postnup agreement?

A postnup agreement should be:

  • made in writing
  • signed by both spouses
  • signed by two witnesses.

As above, the agreement should set out how your financial assets and debts should be divided in the event of divorce, separation or death.

A family solicitor can help you to draft a post-nuptial agreement, particularly if your financial circumstances are complex.

Both you and your spouse should also take independent legal advice to ensure that you are aware of the implications of signing such an agreement.

Can I have a postnuptial agreement if I already have a prenuptial agreement?

Yes. Even if you already have a pre-nuptial agreement in place, you can sign a postnup to reinforce your financial arrangements.

You can also use a postnup where your circumstances have changed since you signed the prenup (for example, if one of you have changed jobs or received an inheritance).

A postnup can also be considered where you have experienced difficulties in your relationship since you married, and you want to ensure your future financial arrangements are settled and agreed.

Can I make a post-nuptial agreement at any time?

A post-nuptial agreement can only be drawn up and signed once your marriage has taken place (if it’s before the marriage then it’s a pre-nuptial agreement).

However, there is no time limit on making a postnup. You can do this at any time after you marry.

Is a post-nuptial agreement legally binding?

A post-nuptial agreement is not currently legally binding in England and Wales.

However, while a court is not obliged to follow the contents of your agreement, it will normally be taken into consideration. Courts will typically implement a postnup if:

  • the agreement has been freely entered into by both spouses – there must be no undue pressure on either party or any fraud
  • both spouses intended to be legally bound by the agreement
  • both spouses have a full appreciation of its implications, gained through independent legal advice
  • there has been no substantial change in circumstances between agreeing the postnup and the court hearing which would make the terms of the postnup ‘manifestly unjust’
  • the agreement provides for any dependent children
  • there has been full disclosure of assets, including property, pensions, savings and investments.

The position of postnups was strengthened by a Privy Council judgement in 2008 in the MacLeod v MacLeod case. This found that postnups could be considered valid as long as it fulfilled the considerations above.

How do I ensure a post-nuptial agreement is upheld?

Ensuring that a court upholds your post-nuptial agreement requires you to draw up the agreement carefully. You should take into consideration all the factors above, and make sure you can answer ‘yes’ to these questions:

“Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications?  If so, in the circumstances as they now are, would it be fair to hold them to their agreement?”

Lady Hale Supreme Court Judgement – Radmacher v Granatimo (2010)

Failure to include provision for children or to take independent legal advice prior to signing the agreement could render it invalid. This would make it hard for you to ask a court to uphold the terms of the agreement.

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