What is a postnuptial 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 agreement reached between couples in relation to what will happen to their finances, should the marriage break down. Sometimes, a couple will have entered into a Post-Nuptial Agreement before they got married and then choose to enter into a further Post- nuptial Agreement to confirm the arrangements still stand after they have got married.
Are Post-Nuptial Agreements Legally Binding?
Post-nuptial Agreements are currently not legally binding in England and Wales. If a couple gets divorced the Court does not have to follow what is contained in the agreement when deciding on a financial settlement although usually it will be taken into consideration.
Judges should usually follow Post-nuptial Agreements if both parties are aware of the consequences and entered in to it freely. To have a valid agreement, the process must be conducted properly, with no pressure or coercion. Each person should receive independent legal advice on what they would get without the agreement, and how it would affect them.
Before signing the agreement, each person should be completely honest about their assets, such as any property, business interests, bank accounts, pensions and income
What Can be Included in a Post-Nuptial Agreement?
Post-nuptial Agreements can include anything you want them to, but the main purpose is to set out what will happen to your finances if the marriage were to break down. Common things that are covered in Post-Nuptial Agreements are:
- How to property either of you brought into the marriage should be divided
- What would happen to the family home
- What would happen to any property given to you or inherited during the marriage
- What would happen to joint assets
- What would happen to pensions provision
- How debts would be dealt with
- If maintenance would be paid or received and, if so, for how long
It is important that the agreement is reviewed every so often, particularly after any children are born, as the Court will take the children’s needs into account first when deciding on a financial settlement. The Court is unlikely to uphold an agreement that does not take the needs of your children into account, or that is detrimental to your children.
Why would we need a postnuptial agreement?
There are many reasons why couples might want to consider a postnup. For example, you may want to protect your assets in case of divorce or dissolution, or you may want to clarify your financial rights and obligations during the marriage.
What can be included in a postnuptial agreement?
Couples might consider a Postnup for various reasons, such as safeguarding assets in the event of divorce or dissolution, or setting out their financial responsibilities during marriage.
How is a postnuptial agreement made?
A postnup is legally binding once both partners have agreed to it, in writing and each partner has had their own lawyer to provide advice. If the couple ends up divorcing or dissolving their civil partnership, the court will uphold the terms of the agreement
What if we change our minds?
If you no longer want to be bound by the terms of the postnup, both spouses or partners can sign a new agreement or obtain a court order to cancel it. The couple is also allowed to modify the agreement at any time if both parties consent to the alterations.
Do I need a postnuptial agreement?
There's no right or wrong answer to this question – it depends on your individual circumstances. You may want to consider a postnup if you have significant assets that you want to protect, if you're worried about what would happen to your finances in the event of divorce or dissolution, or if you want to clarify your financial rights and obligations during the marriage.
If you're not sure whether a postnup is right for you, it's a good idea to speak to a solicitor who can advise you on your individual situation.
Can we get a postnuptial agreement in the UK?
Postnuptial agreements are valid in the UK, although they are not legally recognised. This means that the court will not necessarily uphold the terms of a postnup if a divorce or dissolution of civil partnership takes place. Nevertheless, many couples still draw up postnuptials to ensure greater financial security and clarity. The government intends to one day pass legislation giving postnuptial agreements more legal weight, so it is possible that this may change in the future.
