Post Nuptial Agreement
A postnuptial agreement (also called a postnup or a post-marital agreement) is designed to deal with the same situation as a pre-nup. In other words, deciding what should happen to each partner’s assets after divorce. However, unlike a pre-nuptial agreement, which is agreed before a couple is married, a post-nuptial agreement is entered into by the couple during their marriage.
Are Post-Nuptial Agreements Binding In the UK?
Postnuptial agreements are not strictly binding in the UK, but it is likely that a post-nuptial agreement will be respected by the court unless the effect of the agreement would be unfair.
In order to do the best job of ensuring that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full and take independent legal advice on the agreement and its effects.
Agreements are generally less likely to be considered to be unfair if they are recent or if circumstances have not changed since and if both people knew exactly what they were getting into when the agreement was made, both legally and financially, without any undue pressure being applied.
It is possible that the court might uphold part of an agreement while considering a different part to have an unfair effect.
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What sorts of things does a post-nup cover?
A post-nuptial agreement is a bespoke document drawn up for the two of you for your particular circumstances, so it can cover almost anything you want it to. There are certain things that couples usually think about when deciding how they would want to work things out if the marriage does not work:
- What would happen to property either of you brought into the marriage?
- What would happen to the family home?
- What would happen to any property given to you or inherited during the marriage or any income or assets derived from trusts?
- What would happen to money held in joint accounts and any property purchased jointly?
- What would happen to any saved money earned during the marriage?
- What would happen to your pensions?
- How would you deal with any debts?
- Would either of you pay or receive any maintenance and, if so, for how long?
- What kinds of events might require the agreement to be reviewed?
- What kinds of arrangements would you like to make for any children you have or are likely to have, both in financial and in practical terms?
What happens if we have children?
It is usual to build in provision for a review of the agreement if and when you have children, so that the children’s needs can be considered and assessed at that time, with possible changes made to any expectations of the adults.
In the event of a divorce, if the court is asked to intervene in financial arrangements its first consideration is always the children involved. If the court considers that any agreement of the adults may adversely affect their children, e.g. by restricting any expectations of a lifestyle they would otherwise have had, it is likely to consider that it is not fair to uphold the agreement in the circumstances. It is not possible to contract out of giving financial support to or for a child.
In 2010, the Supreme Court gave the following guidance in relation to post-nuptial agreements:
‘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.’
What’s included in the post nuptial agreement fixed price?
We can offer you a fixed fee for the preparation of your agreement and the accompanying schedule of assets.
What’s included in the postnuptial agreement fixed price?
Our fees: £1,500.00
VAT on our fees: £300.00
Total of £1,800.00
- A consultation to discuss what you would like to be covered in the agreement
- Advising you as to the issues you may wish to consider including in the agreement
- Preparation of financial disclosure (schedule of assets)
- A further meeting to discuss the other party’s financial disclosure (if necessary)
- Discussions with you via letter, telephone or email to address matters arising during the process
- Correspondence on your behalf with the other party’s legal representative to finalise the agreement and arranging for signature
- Storing a copy of an agreement for a period of 6 years.
Frequently asked questions on Nuptial Agreements
A nuptial agreement cannot oust the powers of the family court to make decisions on how assets should be distributed in court proceedings. A party seeking to rely on the terms of a nuptial agreement must make an application to the court for a financial remedy i.e. a Financial Order. Until the nuptial agreement has been made into a court order (by consent or otherwise), its terms cannot be enforced.
There is a three-stage test that must be met:
-The agreement must be “freely entered into by each party” with no pressure from the other;
-Both parties must have a “full appreciation” of the implications of the agreement.
-The agreement must be “fair”.
If the agreement passes the three-stage test and is based on full financial disclosure and both parties have sought independent legal advice then it will be seen as a “relevant factor” in future divorce proceedings.
A pre-nuptial agreement is an agreement entered into before a marriage and a post-nuptial agreement is entered into after a marriage.
Well in advance of the wedding and in any event a pre-nuptial agreement should be signed at least 28 days before the wedding.
You and your future spouse should exchange ‘material disclosure’.
It is standard practice for both parties to have separate independent legal representation to avoid any conflicts of interest.
It is always advisable to regularly review nuptial agreements. We would advise a further agreement if there has been a significant change in circumstances e.g. if a child has been born after the marriage took place.