A post-nuptial agreement (commonly called a postnup) is exactly the same as a pre-nuptial agreement (commonly called a prenup) but is entered into after the marriage or civil partnership. Its purpose is to detail the agreed arrangements in respect of the finances, living arrangements and perhaps the arrangements for the children in the event that the parties decide to separate and end their marriage/civil partnership. The aim is to safeguard the interests of both parties and limit their exposure to financial risk and stress in the event that a marriage/civil partnership ends by seeking to achieve a better degree of certainty in advance and avoiding potentially expensive litigation. A postnup can be viewed as a form of insurance against costly litigation.
Post-nuptial agreements are becoming a common feature of modern marriages/civil partnerships. One no longer has to be a Rockefeller or Trump to want a post-nuptial agreement. A person who has managed to save £20,000 may be more protective of their little nest egg than someone who has millions.
In civil partnerships the post-nuptial agreement is often called a pre-civil partnership agreement or a pre-registration agreement. The choice of name is purely stylistic. The Law Commission preferred to use post-nuptial agreement in their 2014 report but there is no wrong or right name. Whatever name is agreed for the agreement, with a civil partnership the agreement should naturally refer to dissolution rather than divorce and to Schedule 5 of the Civil Partnership Act 2004 rather than the section 25 of the Matrimonial Causes Act 1973.
Are post-nuptial agreements binding?
The law now recognises a well-drafted post-nuptial agreement. Our specialist solicitors based in High Wycombe, Buckinghamshire can draft a post-nuptial agreement for you.
A post-nuptial agreement is different from a pre-nuptial agreement in that it falls within the definition of a "maintenance agreement". These are defined as (by virtue of section 34(2) of the Matrimonial Causes Act 1973) any agreement in writing made between the parties to a marriage, containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage.
Post-nuptial agreements are binding unless there is a good reason for them to be void or unenforceable because, for example, the agreement restricts a person's right to apply to the Court because there has been misrepresentation or undue influence.
Therefore all post-nuptial agreements will be binding on the parties subject to voidable or unenforceable provisions.
The English Supreme Court has recently said that:
"The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
Such agreements need to be:
Should I have a post-nuptial agreement?
freely entered into by both parties;
both parties need to be properly advised, or have had the opportunity to be properly advised;
understood in terms of their effect by both parties;
subject to full financial disclosure by both parties; and
if possible provide for future changes.
You should consider entering into a post-nuptial agreement if you fall into any of the following categories:
You each have properties and/or other assets which you wish to protect;
You have significant assets such as a home, stock or retirement funds;
You own all or part of a business;
You may be receiving an inheritance;
You have children and/or grandchildren from a previous marriage;
One of you is much wealthier than the other;
One of you will be supporting the other through higher education;
You have loved ones who will need to be taken care of, such as elderly parents; or
You have or are pursuing a degree or career in a potentially lucrative profession.
Even if you do not need a postnup it can be useful to discuss the possibility with your partner because it is so important to plan for the future.
Do I have to use a solicitor to draw up a post-nuptial agreement?
Technically anyone can draw up a postnup, but we recommend that you seek legal advice from our family law specialists. English Courts can be notoriously arbitrary in family law cases and are unlikely to pass a favourable judgment in the event of a makeshift agreement. The cost of consulting a solicitor is inconsequential compared with the financial protection you will acquire from a properly drawn up agreement after consultation with one of our solicitors. In some recent cases individuals have lost up to 65% of their personal wealth as a result of a haphazardly self-written agreement.
Please contact us today for a free no obligation telephone discussion by calling either our London
or High Wycombe
Our Family Law Team