Swindon Family Lawyer, Catherine Smith, considers postnuptial agreements – what are they, are they legally binding, and when do you need one? Catherine is available on 01793 615011, or by email at firstname.lastname@example.org.
Most people broadly understand the nature of a prenuptial agreement [see our short guide]. Fewer, however, have encountered the term ‘postnuptial agreement’ or ‘postnup’.
What is a post-nuptial agreement?
As the name suggests, whereas a prenuptial agreement, or ‘prenup’, is a written agreement entered into before your marriage, a postnuptial agreement takes place at any time afterwards. Like a prenup, a postnup should detail your joint assets and explain how they will be divided should you get divorced.
Are postnups legally binding?
Many couples find it surprising that, as with prenups, postnups are not legally binding in England and Wales. However, the court will always consider them very carefully, and a postnup should be upheld if the court is satisfied that certain conditions are met, namely:
- both of you understood the implications of the agreement, and it was entered into voluntarily and without duress;
- there was full disclosure between you of your assets and liabilities;
- your children (if any) are not subjected to any prejudice by the agreement;
- both of you obtained independent legal advice before entering into the agreement;
- the terms of the agreement are fair.
When should I get a postnup?
There is no perfect time to enter a postnuptial agreement. However, it is generally not a good idea to consider one if you are going through relationship difficulties. Increased emotions can make it more difficult to agree on what is fair and balanced.
If you already have a prenup, you may both wish to take advice on signing a postnup if you believe that your circumstances have changed or that your prenup may not be strong enough to satisfy the court on divorce.
A typical scenario where a couple will enter into a postnup is reconciliation following relationship breakdown to safeguard against future breakdown.
How do I get a post-nuptial agreement?
As with a prenup, there is considerable scope to get a postnup wrong, either in content or procedure. Therefore, always avoid homemade postnups and take legal advice.
Although you may be deterred at the need for each of you to take independent legal advice, in most cases, postnups are relatively inexpensive. In any event, the potential certainty it brings to any future relationship breakdown is likely to render the cost a very worthwhile investment.
You may also be concerned that the requirement for taking independent legal advice will create tension, mistrust and disagreement. However, a solicitor must advise you objectively on the proposed postnup to enable you to make an informed decision. Remember, if a potential issue is highlighted to you, your partner’s solicitor has very likely raised the same issue with them. And, of course, failing to take independent advice at all could result in the court not upholding the agreement.