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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.
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.
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:
A post-nuptial agreement cannot prejudice the interests of any children in your family.
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.’
We can offer you a competitive fee for the preparation of your agreement and the accompanying schedule of assets.
What’s included in the postnuptial agreement fees?
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