Post-nuptial agreements are often misconceived as being ‘only for the rich’. However, this is not the case.
A post-nuptial agreement can be used by anyone who wants to provide some degree of protection for their assets and finances in the event of relationship breakdown.
In this article, Family Partner Simon Immins looks at the pros and cons of entering into a post-nuptial agreement and outlines what can and can’t be included in one.
What is a post-nuptial agreement?
A post-nuptial agreement is an agreement between married couples or civil partners which sets out what they would like to happen to their assets and finances if they were to split up.
This agreement differs from a pre-nuptial agreement, which is usually more common, as it is entered into after a marriage or civil partnership rather than before.
Read our separate article on pre-nuptial agreements here.
How long after marriage can you do a post-nuptial agreement?
You can get a post-nuptial agreement any time after getting married or entering into a civil partnership, as long as both you and your partner agree to it.
It’s usually agreed that the sooner you enter into a post-nuptial agreement (or as soon as you gain an asset or interest in an asset that you hope to protect), the better!
How long does a post-nuptial agreement last?
The longevity or enforceability of a post- nuptial agreement depends on the circumstances that led to the agreement being made and any changes that have occurred since the agreement was reached.
This is particularly the case if those changes are significant.
If there have been any dramatic changes in the parties’ circumstances then it is important that theses changes should be considered and the document reviewed even if it is subsequently not changed, so it remains valid.
If these steps are followed, then the agreement will continue to have validity.
What are the benefits of a post-nuptial agreement?
I’ve summarised the advantages of entering into a Post-nuptial agreement below.
Clarity
A post-nuptial agreement allows you to make it clear to one another that certain property belongs to you alone and will not be shared during the marriage or on any future divorce.
This property is often referred to as ‘non-matrimonial property’.
The Post-nuptial agreement will make what constitutes non-matrimonial property, and the value of any property you are giving up the rights to share, clear.
Certainty
You can agree at the outset of your marriage how your finances will be divided if you later separate or divorce.
This should save you both the uncertainty, time and stress of litigating about your finances if you do later separate or divorce.
The divorce process has recently become slightly easier with the introduction of no-fault divorce, you wouldn’t want to add the extra stress that comes with finances.
Transparency
You should both provide financial disclosure of your assets and income in the post-nuptial agreement, so you will both know and understand the value of each other’s assets, which will assist you in your negotiations.
Neither party can claim that they were misled and have provided informed consent to the agreement.
Potential money saving
Although you’ll pay legal fees to set up the post-nuptial agreement, this is much less expensive than it would cost you to argue about the division of your finances in court.
You can find out about all of the fees involved in divorce in our guide here.
Protection of assets
You can seek to protect and ringfence assets that you might want to keep separate from your partner, such as:
- Inherited assets
- Family heirlooms
- An interest in a family business
- Gifts received from a third party
- Property acquired before the marriage.
If the post-nuptial agreement ringfences any such property, the Court is less likely to award a share of that property to the other party on any future divorce.
Protection of family members
If either of you have children from a previous relationship or marriage, a post-nuptial agreement can protect the financial interests of those children by trying to ensure that certain assets are kept for them.
You can find out how to get parental responsibility as a step-parent here.
Minimises acrimony on divorce
Setting out ‘who gets what’ in a post-nuptial agreement should reduce arguments over finances if you later divorce. This means things should be more amicable.
Improves communication
Discussing financial issues can be one of the most difficult aspects of marriage. Dealing with this now can strengthen a relationship and support good communication in the marriage.
What are the cons of post-nuptial agreement?
I’ve summarised the disadvantages of Post-nuptial agreements below.
Not legally binding
If the court finds a post-nuptial agreement to be unfair, for whatever reason, it won’t uphold it.
However, as long as the agreement was freely entered into and everything was done fairly; a court will likely uphold it.
Difficulties making financial provision for children
As we stated earlier, the courts act in the best interest of the children during proceedings. If they do not think that a post-nuptial agreement reflects these interests, they may not uphold it.
Changes in circumstances
A post-nuptial agreement cannot predict what will happen during the marriage and significant changes in circumstances may occur.
Should circumstances change, a post-nuptial agreement that does not cover the changes will lose its relevance and is unlikely to be upheld by the Court.
A review clause should be included in the agreement to trigger a review of the terms on a significant change in circumstances, however this will result in further time, legal fees and potential difficulties.
Mistrust
Your partner may misunderstand your request for a post-nuptial agreement as mistrust. They may worry that you are planning to end the marriage.
This is why communication is key.
Legal fees
Although a post-nuptial agreement can save you money if there is a later divorce, if the marriage survives then the legal fees that you’ve spent would have been ‘wasted’.
Though, it is better to be safer than sorry. It’s like having car or travel insurance, you may never need it – but you’ll be glad to have it if you do ever need it!
For a full list, you download our ‘Advantages and Disadvantages of Post-nuptial agreements’ guide here.
What cannot be included in a post-nuptial agreement?
A post-nuptial agreement can cover a lot, but there are certain things that you can’t include within one:
- You can’t decide child custody or make decisions about child support.
- You can’t include different outcomes depending on the reason for the breakdown of the marriage. For example, you can’t state that you should receive more financially if your partner commits adultery.
- You can’t agree that you won’t apply to the court to consider financial issues.
What makes a postnuptial agreement invalid?
A post-nuptial agreement won’t be enforceable and will become invalidated if it includes any of the above.
In addition, the court won’t uphold an agreement if they consider it to be unfair.
Post-nuptial agreements that don’t include a review clause can often become outdated and irrelevant during the divorce. As we mentioned above, circumstances change and the courts will consider this too.
Other, more general issues that might cause an agreement to become invalid include:
- If it is not signed by both parties and in writing
- If it has not been entered into voluntarily
- If there are inaccuracies – such as one party deliberately underestimating their finances
- If it included biased and unjustified claims
- If important assets and finances are excluded
Who benefits most with a post-nuptial agreement?
People often think that pre-nuptial and post-nuptial agreements are only for the wealthy. However, they benefit anyone who wants to protect their finances and assets.
There are some people that do benefit more than others, who are as follows:
- Anyone with assets such as property and vehicles, that they wish to protect
- Anyone who owns their own business
- Anyone who wants to set out their children and grandchildren’s inheritance
- Why this is beneficial is outlined in more detail in our downloadable guide here
- Anyone who’s partner is in debt and doesn’t want to fall into debt themselves in the event of a break-up
Is a post-nuptial agreement better than a pre-nuptial agreement?
Because they essentially achieve the same thing, no – neither is better than the other.
Which of these agreements you enter into just depends on timing and your circumstances.
Can I write my own post-nuptial agreement?
Yes, it is possible to create your own post-nuptial agreement. However, it is a complex legal document so we would recommend instructing a solicitor to this for you.
A solicitor can ensure that you know the implications of what you and your partner are proposing, that the proper legal procedure is followed so the document is effective and that nothing invalidates the agreement.
In addition, they can include any clauses, such as a review clause, that you might struggle to include otherwise.
Specialist Post-Nuptial Agreement lawyers
At Frettens, our bright and experienced Family Team would be happy to assist you in drafting a pre-nuptial or post-nuptial agreement.
We offer a free initial chat for all new clients, so you can speak to us to iron out the details and discuss your circumstances before committing to anything.
You can call us on 01202 499255 or fill out the form at the top of this page to find out more.
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