Postnuptial agreements

A postnuptial agreement is a legal contract between a married couple that outlines how assets, finances, and property will be divided if the marriage were to end. Unlike prenuptial agreements, which are signed before marriage, a postnuptial agreement is created after you are legally married.

Postnuptial agreements are designed to provide clarity, security, and peace of mind. They can address a wide range of financial matters, including property division, debt responsibilities, spousal maintenance, and future inheritances.

Postnuptial agreements act as a declaration of the respective rights each spouse has over their shared assets and individual liabilities.

A comprehensive postnup should also provide an unambiguous statement of what will happen to these assets and liabilities in the event of a divorce.

Financial arrangements can be a common cause of disputes during a divorce, so by having a postnuptial agreement in place, much of the stress and potential conflict can be removed from the situation.

Yes, it is possible to make an agreement before you are married. This is known as a prenuptial agreement.

The purpose of a prenuptial agreement is identical to a postnuptial agreement. The only real difference between the two is the point at which they are drafted and signed.

If you want to sign a prenuptial agreement, you must do so at least 28 days before the date of the wedding.

There are many reasons why couples may choose to create a postnuptial agreement. These may include:

• You have a prenuptial agreement, but your circumstances have changed/it is now outdated.
• There has been a change in your collective or individual financial circumstances.
  • g., a new business venture, a major promotion, inheritance, or financial windfall.
• You want to protect assets for children from a previous relationship.
• You want to address financial concerns that have arisen during the marriage.
• You want to safeguard a business from being divided in a separation.

Regardless of the reason, postnuptial agreements can offer a sense of financial security and help avoid disputes in the future.

If you think that a postnuptial agreement will be advantageous for your marriage, or you think that you would benefit from replacing your existing prenuptial agreement, your starting point should always be to speak to a specialist family law solicitor.

It is usually beneficial to have a discussion about your plans so that your spouse is aware of what the agreement is likely to include and how they will also be affected. This could save you from having to have a very difficult conversation later down the road.

When you sit down to discuss the prospect of creating a postnuptial agreement, you will be able to gain a more detailed understanding of what your current position is, how it is likely to look if you were to divorce and what provisions you would ideally like to make. You will also need to provide full financial disclosure (as will your spouse).

It is important to note that you and your spouse will always need to receive independent legal advice prior to signing a postnuptial agreement. Only by doing so will the agreement be considered by the courts if they become involved in the future.

If you are happy with the terms that have been discussed and are ready to proceed with creating a postnuptial agreement, your solicitor will then begin drafting all the documentation. These documents will need to be reviewed by your spouse and their solicitor.

Your spouse and their solicitor may want to make certain amendments to the document before they sign, which means there could be a period of negotiations.

Once all parties are happy, you and your spouse will both provide your signature and the postnup will be in effect.

In the UK, postnuptial agreements are not automatically legally binding. However, if they become involved in a case, the courts do take them into serious consideration, provided that:

• Both parties have sought independent legal advice before signing.
• There has been full disclosure of assets.
• Both parties clearly understood the terms and implications of the agreement.
• The agreement was signed without pressure or duress.
• The terms are fair and do not leave one spouse at a significant disadvantage.
• Children are not prejudiced in any way by the agreement.
• The agreement has been regularly reviewed to ensure that it is fair.

Exactly what issues a postnuptial agreement will address varies from couple to couple. Postnups are bespoke documents, so there is no ‘one-size fits all’ approach.

That said, there are various issues that are useful to consider when agreeing on the terms of a postnuptial agreement. These include:

• Division of property already owned by either party or jointly.
• Division of property purchased after the signing of the agreement solely or jointly.
• Any agreement for spousal maintenance.
• Division of pension assets.
• Payment of current or future debts held in sole names or jointly.
• Arrangements for any gifts exchanged or received by either party from each other or from others.
• Future inheritance that may be received by either party.
• What you will leave by Will to the other party.
• Arrangements for life insurance.

It is possible to sign a postnuptial agreement at any point after you get married.

The cost of creating a postnuptial agreement will largely depend on circumstances.

When working with our family law solicitors, you will be charged for drawing up the agreement, with prices normally starting at around £1,250 plus VAT. The total cost of a postnuptial agreement in the UK will depend on the complexity of your finances and the arrangements that you wish to make. This price will normally include advice on the full implications of the agreement and guidance on appropriate times to review the content.

Our expert family law solicitors can advise you during a free initial telephone appointment to help you better understand the cost of your postnuptial agreement.

It is technically possible for you to write up the terms of a postnuptial agreement yourself. However, this is something we would strongly advise against.

Firstly, postnuptial agreements will only be valid and considered by the courts if both parties have received independent legal advice prior to signing. Secondly, deciding on your financial rights and responsibilities can be an incredibly complex endeavour and it is easy to make a mistake or oversight which would negatively impact you further down the line. This is something our specialist postnuptial agreement solicitors can help you to avoid.

Postnuptial agreements will ‘hold up’ with the courts so long as the correct criteria were followed when it was signed, and it would be fair and reasonable to uphold the terms.

Details on the criteria that should be followed when creating a postnuptial agreement can be found under the FAQ “Is a postnuptial agreement legally binding in the UK?” above.

If you do not have a postnuptial agreement in place, it will be down to you and your spouse to come to an agreement on how to divide your assets.

You will have the opportunity to make a voluntary agreement using alternative dispute resolution methods, such as mediation, to guide your discussions. If this is not successful, you can apply to a court for a Financial Order.

Without a postnup (or prenup if you already have one in place prior to marriage), this can be a complicated process and one which can lead to tension and conflict.

It is strongly encouraged that you regularly review the terms of a postnuptial agreement to make sure that it continues to reflect your situation accurately.

You can change and modify the terms of a postnuptial agreement at any stage, but you will only be able to do so if both parties provide their consent to the changes and receive independent legal advice. This helps to ensure that the agreement will continue to be valid should there be a dispute during divorce proceedings.