What is a postnuptial agreement?
A postnuptial agreement is similar to a prenuptial agreement, but with one critical difference – it is drawn up after a couple have already married or entered into a civil partnership. It details how a couple’s property and assets should be split if they were to divorce, separate or one of the partners should die.
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Why might I need a postnuptial agreement?
If your circumstances are likely to change over the coming years and you want to protect your own personal interests in the potential circumstances of a divorce, a postnuptial agreement might help you to do this.
Likewise, many couples like to know where they stand in terms of what might happen in the case of a future separation, and a postnuptial agreement can ensure that there’s no misunderstanding should the unthinkable happen. After all, as they say, forewarned is forearmed.
Some of the most common reasons for needing a postnuptial agreement include:
- A desire to protect your business interests, inherited wealth or any assets which you built up before you were married and which otherwise could be claimed by your spouse in the case of divorce
- Clarity about the financial arrangements and split of assets following a potential divorce
- Reducing the likely burden of huge legal fees in the future should a divorce occur
- A suspicion that your spouse might react particularly badly to a potential divorce and cause big legal problems in the future
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What should I include in my postnuptial agreement?
Your postnuptial agreement will be unique to your own particular situation, but should include all details as to how your financial arrangements and family situation will be maintained in the event of a divorce. You should also revise your agreement if your financial situation changes substantially while you are still married.
Our divorce solicitors will be able to advise you as to how best to tailor this to your own situation but a well drafted agreement might be expected to include the following:.
- How any shared bank accounts or credit card/loan debts will be split in the event of a divorce
- How you intend to split any property you own – will a property need to be sold and, if so, how will the proceeds of that property sale be split following a divorce, including the settlement of the mortgage and associated costs
- How to deal with divorce with a UK business involved
- The division of assets including items bought both before and during the marriage
- The contribution of both partners to the mortgage, rent, household bills and other costs in the period between the divorce and the sale of the home
- The provision for maintenance of children and pets, including the ability for children to see the other parent and grandparents/extended family
- What will happen to any pension
- Division of other assets
Will my postnuptial agreement be enforceable in England and Wales?
Currently, no.
In many countries around the world, postnuptial agreements are legally binding. However, in England and Wales this is not necessarily the case. Like prenuptial agreements, courts in this country do not yet recognise postnuptial agreements as binding on the parties.
Judges may, however take any postnuptial agreement into consideration when considering how to divide the family assets in the event that you and your spouse seek a divorce as any agreement details the intention of both parties upon marriage breakdown.
Postnuptial agreements are particularly likely to be given considerable weight in a divorce court if certain safeguards have been put in place. This follows the case of Radmacher v Granatinoin in 2010 and a report published by the Law Commission on 27th February 2014. If your financial circumstances at the time of divorcing are roughly the same as when the agreement was made and as long as the agreement is not considered to be unreasonable by the judge (such as if it were to unfairly penalise one partner) then the judge might just choose to stick to the terms of the agreement – but there is no guarantee he will even bear it in mind.
Put simply, prenuptial and postnuptial agreements can’t be used in a divorce court to limit or overrule its jurisdiction, but they can be taken into account of reasonable measures are taken and safeguards are put in place. Your divorce solicitor will be able to advise you as to the specifics in order to ensure your postnuptial agreement carries weight in a divorce court and will be enforced.
Your divorce lawyer will be able to advise you on how to form your postnuptial agreement and also flag up and potential areas of it which may or may not be enforceable. It is important that the entire postnuptial agreement is credible and enforceable, as even one clause seen as unreasonable by a divorce court could lead them to discredit the postnuptial agreement as a whole. If both partners are entering into the postnuptial agreement with the best of intentions, it is vital to ensure that it will be enforceable and recognisable by a court of law in the future.
It’s also possible that the judge could use your postnuptial agreement as a rough guide, but still make changes to the terms of it. For instance, a judge could choose to award one partner more than they are awarded by the agreement, but less than they might have received if there was no agreement in place.
What might the court look at when considering my postnuptial agreement ?
When considering what effect, if any, your postnuptial agreement will have on a court approved financial settlement, the judge may want to consider the following factors:
- No party should be coerced into signing an agreement they’re unhappy with.
- Both parties should seek independent legal advice from their own solicitor as to the terms of the agreement before signing.
- There must be full and open financial disclosure of the assets of both parties when drawing up the agreement – so that a fair settlement can be reached.
If a judge suspects that any of these terms have been breached in the creation of your postnuptial agreement, it’s highly unlikely that any real consideration will be given to your postnuptial agreement when ruling on a financial settlement on divorce.
However, if a child is involved, then any judge must consider what is in the best interests of the child at the time of the divorce, regardless of what might be written in the postnuptial agreement.
Prenuptial and postnuptial agreements – the difference
Most of us have heard of prenuptial agreements, which tend to consist of a set of terms agreed before a couple marries, protecting the interests of both partners against the potential occurrence of a divorce.
Prenuptial agreements were popularised by American celebrities, and the practice soon spilled over into everyday life with people from all walks of life creating prenuptial agreements before getting married.
A postnuptial agreement is different – something that a couple can choose to enter into AFTER their wedding. The aim of the agreement is to set out what would happen to the family’s finances if the couple were to get divorced.
If you don’t have a prenuptial agreement in place, however, a postnuptial agreement could still protect your interests.
Advice on creating a postnuptial agreement
If you want to discuss the creation of a postnuptial agreement, contact our team of expert divorce solicitors who will be able to assess your situation and advise you as to the best way to form a postnuptial agreement which will leave both partners clear about the financial situation regarding their marriage.
If you are interested in getting a postnuptial agreement, or if you are divorcing and you already have one, contact our team of expert divorce solicitors about the issue. They will be able to assess your situation and advise you as to the best way to form a postnuptial agreement which will leave both partners clear about the financial situation regarding their marriage.
Advice on an existing postnuptial agreement
Equally, if you are divorcing and you already have a postnuptial agreement in place, our specialist team can position and your current options – so you are fully informed before you make a decision of any sort.
Our 3 strong family law team is hugely experienced, providing legal advice to clients throughout Wiltshire, Hampshire, Dorset and nationwide.
