Prenuptial vs Postnuptial Agreements: What’s the difference?
Prenuptial agreements (or ‘prenups’) and postnuptial agreements (or ‘postnups’) have gained popularity over recent years, particularly amongst high net worth individuals, as a means of protecting their wealth when getting married.
So how do they work – and what is the difference between them?
What is a prenuptial agreement?
A prenuptial agreement is essentially a contract, entered into by a couple prior to marriage, which sets out how the assets of each spouse should be distributed in the event of divorce.
Prenups can cover all sorts of assets, including property, savings, pensions and high value art and jewellery. Their primary purpose is to avoid these assets becoming mixed together in the overall matrimonial pot by:
- setting out who owns what at the start of the marriage; and
- demonstrating the intention to keep individual assets separate.
The overall goal is to reduce the possibility of financial disputes relating to divorce ending up in court.
What is a postnuptial agreement?
A postnuptial agreement is also a contract which sets out how the assets of each spouse should be distributed in the event of divorce, but it is entered into by a husband and wife who are already married.
Postnups can cover all the same sorts of assets as prenups (ie property, savings, pensions and high value art and jewellery etc).
And the main goal of postnups is similarly to avoid assets becoming mixed together in the overall matrimonial pot and to reduce financial disputes further down the line in the case of divorce.
What is the difference between prenups and postnups?
As we can see above, prenuptial and postnuptial agreements are almost identical.
The only difference – and it is a crucial one – is that prenups are entered into before marriage whereas postnups are formed after marriage (and while the couple are still married).
It is advisable that prenups (and postnups) are reviewed every few years to check that they take account of the latest situation (eg if there has been a material change of financial circumstances).
If a prenuptial agreement needs to be changed once the couple is married, this will be superseded by a postnuptial agreement.
Are prenups better than postnups?
Since prenups are agreed before marriage, it can be easier to decide who owns what while both spouses are leading independent lives.
After they have been married for some time, certain assets may be more difficult to separate and it can therefore be more difficult to create a postnuptial agreement.
However, once they have been agreed, both prenups and postnups are equally as effective.
Are prenups and postnups treated equally by the law?
Prenuptial and postnuptial agreements are not legally binding in the UK. Courts are not required to follow them and they can determine how any assets should be divided irrespective of intentions set out in these agreements.
However, courts will generally take them into account – and the Supreme Court, in the case of Radmacher v Granatino, held the following:
“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.”
So they are both useful to have – and the court will generally pay heed to both prenups and postnups if they have been created properly.
What can be included in prenuptial and postnuptial agreements?
Some of the common elements of prenups and postnups include:
- Matrimonial home
- Property portfolios and inheritances
- Maintenance payments (eg if one party is in a stronger financial position)
- Savings, shares and pensions
- Business assets
- Personal valuables (eg jewellery)
How do you make a prenuptial and postnuptial agreement?
Couples who want to make a prenuptial or postnuptial agreement should decide how they would like all their individual and joint assets to be divided up between them in the event of divorce.
If one spouse is in a stronger financial position, they should also consider how maintenance payments would work in the long run.
Once the main points have been agreed, it is possible for a couple to create a straightforward prenuptial or postnuptial agreement online with Divorce Online. For more complex agreements it may be necessary to instruct a solicitor.
*It is important that both spouses (or prospective marriage partners) obtain independent legal advice before entering into either agreement.
Furthermore, they should not feel under duress when they sign it. In the absence of independent legal advice (or if there is any sign of duress), the court will not take prenups or postnups into account.*
If you have any other questions regarding your divorce then please do not hesitate to get in touch with us. One of our highly qualified advisors will be more than happy to help, 01793 384 029.