Many people will be aware of a Pre-nuptial Agreement (Prenup) being something couples enter into before they get married to protect their assets. What people may not be aware of is that you can still enter into an agreement to do this, even after the marriage and this is known as a Post-nuptial Agreement.
Post-nuptial Agreements are for people who are married or in a civil partnership and are made after the marriage or civil partnership has taken place.
The purpose of the Post-nuptial Agreement is to record the terms of the agreement reached between a couple as to what will happen to their financial situation, should the marriage or civil partnership break down. Sometimes, a couple will have drawn up a Pre-nuptial Agreement before they got married and then decide to enter into a Post-nuptial Agreement to confirm the arrangements after they have got married.
Post-nuptial Agreements are currently not legally binding in England and Wales. If a couple divorce, the Court does not have to follow what is recorded in the agreement when deciding on a financial settlement, however it will be taken into consideration.
The guidance for the Judge is that they should implement a Post-nuptial Agreement that is freely entered into by each person without undue influence and free from duress with a full appreciation of its implications, unless circumstances make it unfair on either of the parties to do so.
It is very important that a Post-nuptial Agreement is prepared properly. Both parties must enter into the agreement freely and be informed of its implications. Each party needs to obtain independent legal advice on what they would be legally entitled to if there is no Post-nuptial Agreement in place, and how the agreement may change this.
It is also important for each party to make full disclosure of their assets (including property, savings, investments, pensions and income) at the time of the agreement. All of this needs to be done before the agreement is signed.
Post-nuptial Agreements can record anything you would like them to, but their main purpose is to record what would happen to your finances if the marriage broke down. Things that are covered in Post-nuptial Agreements are:
It is important that the agreement is reviewed every so often, particularly when there is a change in circumstances such as children being born. The children’s needs are the paramount consideration of the Court when deciding on a financial settlement. The Court will not place any weight on an agreement that does not take the needs of your children into account, or that is adverse to your children’s needs.
How much does a Postnuptial Agreement cost?
The cost of producing one can vary and will likely depend on the complexity of the document. However, it is normally possible to agree a fixed fee.
Please contact a member of our family team for further advice on Post-nuptial Agreements.
