The Ultimate guide to postnuptial agreements
13th March, 2023
Postnuptial agreements, commonly known as ‘post-nups’, have the same role as a Prenuptial agreement. The difference is a 'post-nup' is entered into after marriage or civil partnership, instead of before, as it is in a 'pre-nup'.
In this guide, we are looking at what postnuptial agreements are, the benefits of having a post-nup and how to get one drawn up.
What is a Postnuptial Agreement?
Similar to pre-nups, post-nups set out the assets of one spouse/civil partner and the other and identifies what will happen to those assets in the event of divorce, dissolution or separation. It may be that the assets are to be shared and split in the event of divorce, and a post-nup can confirm to what extent they will be shared. The post nup can also set out which of the assets would be retained in whole by an individual or their relatives.
A post-nup can also confirm what the couple expect to their assets on death. If this is the case, they should make a Will in the same terms.
Unlike a pre-nup, a post-nup can be created at any point in the marriage.
Benefits of Having a Postnuptial Agreement
Whilst a prenup lays out details of how assets and liabilities will be handled in the event of divorce, it can be difficult to plan for all hypotheticals, whereas a post-nup allows you to address specific assets and liabilities as they arise. Other benefits of having post-nup include:
- They provide better peace of mind and certainty about financial futures in case the relationship breaks down
- They serve as a record of the additional assets that have been brought into the marriage by each spouse or partner
- A postnuptial agreement can also help to protect the inheritance of children from previous marriages
How to Get a Postnuptial Agreement?
If you and your partner are looking to get a postnuptial agreement, you should seek the help of a specialist family law solicitor, who can help you through the process.
A good start for couples considering getting a post-nup is to enter into financial disclosure, listing all assets and deciding together how they should be split in the event of a divorce. However, if this is a difficult conversation to have with your spouse, then you can work through this with your solicitors.
Post-nups should be made in writing and be signed by both parties, with two witnesses present. The agreement should set out all financial assets and debts of the marriage, explaining how these are to be distributed in the event of a divorce, dissolution of civil partnership or death.
It is important that postnuptial agreements are fair for both parties, each spouse or civil partner has had adequate time to fully consider and understand the terms of the postnuptial agreement before entering into it. To fully understand the terms of the postnuptial agreement, it is expected that both parties fully understand the other’s financial circumstances and therefore it’s important to provide full financial disclosure. If a postnuptial agreement is deemed unfair by the courts in the event of a divorce, it may not be upheld.
Are Post-nups Legally Binding in England and Wales?
As with prenups, post-nups are currently not legally binding in England and Wales. However, courts do recognise the agreements and are likely to uphold a prenuptial or postnuptial agreement if it is deemed fair. To increase the likelihood of a court upholding a post-nup, both spouses should receive independent legal advice from a solicitor prior to signing the agreement, all assets should be properly disclosed and there should be no pressure from other parties to sign the postnuptial agreement.
How Can Our Divorce Solicitors Help?
At Ward Hadaway, our specialist family law solicitors can support you and your spouse through the postnuptial agreement process, drafting a contract and ensuring the agreement is fair for both parties. Get in touch with our solicitors today to discuss your needs.
If you would like support or advice about any of your family circumstances, please complete the form below and a member of the team will be in touch to find out more.
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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