Postnuptial Agreements UK: How and why get one after marriage?

What is a Post-nuptial Agreement?

A postnuptial agreement is a legal contract that records the decisions reached between a married couple concerning what will happen to their bank accounts, money, and assets as well as maintenance, possessions, and inheritances, etc. should the marriage break down.

Postnuptial agreements can be used when a couple has previously entered into a prenuptial agreement before marriage and wants to confirm that the choices they made still stand after getting married.

Post-nups will typically set out how the financial assets or liabilities of each party such as property, savings, pensions & maintenance, etc should be distributed in the event of a divorce or dissolution of a civil partnership.

Other matters that could be included in the agreement are what would happen to any property inherited by one partner during the marriage or how you would deal with any debts.

The aim of the postnup agreement, therefore, is to keep individual assets separate rather than allowing them to become marital property within the ‘matrimonial pot’.

Thereby minimising the possibility of divorce-related financial disputes ending up at the mercy of divorce proceedings in court following a breakup.

It is strongly recommended that the agreement be reviewed and updated periodically, especially after children are born, as the court will always take children’s needs such as child custody and child support into account first when deciding on a divorce settlement.

Are UK post nuptial agreements legally binding?

No – whilst they are legal documents often enforced by courts, pre and post nuptial agreements are not automatically legally binding.

Courts are not forced to follow the instructions contained in post-nups, they can determine that assets have been added to the matrimonial pot and how these should be divided notwithstanding the terms of any post-nuptial agreement.

Whilst courts are not legally bound to uphold postnup agreements, they consider them when reviewing financial settlements in divorce cases.

The landmark Supreme Court case of Radmacher v Granatino came up with the following guidelines for family courts to follow when deciding whether to enforce pre and postnuptials:

“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.”

What this essentially means is that:

• Each party should take independent legal advice before entering into a postnup and they should not feel under duress etc.
• Both parties should understand the full extent of any financial claims they might be giving up by signing a postnup (eg any hidden wealth can reduce the effect of an agreement).
• There is an overriding duty of the court to ensure that the needs of both parties – in particular where children are involved – are met.

Why might couples consider a postnup after marriage?

Here are some common reasons why couples might consider a post nuptial agreement after marriage:

Protection of Children’s Interests from Previous Relationships: A postnup can safeguard the inheritance rights of children from previous marriages or relationships by clearly outlining the division of assets and ensuring that these children receive their fair share.

Asset Protection for Business Owners: For business owners, a postnup can ensure that business assets are protected and remain with the original owner, preventing disruption to the business in the event of a divorce.

Protection Against Changes in Personal Circumstances: If one partner experiences a significant health issue or disability, a postnup can help manage the financial implications and support arrangements, providing clear guidance during stressful times. When one partner decides to make a substantial career change, such as taking on a lower-paying job or becoming a stay-at-home parent, a postnup can address the impact on the couple’s finances.

Unexpected Inheritance or Windfall: One partner may come into a significant amount of money unexpectedly, such as through an inheritance, lottery win, or substantial gift. A postnup can help clarify how these assets will be handled and protected within the marriage.

Establish Responsibility for Debts: If one partner accumulates significant debt, a postnup can delineate responsibility, ensuring that one spouse’s debt does not unfairly burden the other, especially in cases where the debt was incurred independently.

Second Marriages and Blended Families: In cases of second marriages, a postnup can help protect assets intended for children from a previous marriage, ensuring that the interests of all parties, including new spouses and stepchildren, are fairly considered.

A postnuptial agreement can include the following:

Some of the common elements of postnups include:

• Matrimonial home – a couple may decide in advance who will be entitled to remain, or if the property should be sold if the marriage breaks down.
• Property portfolios and inheritances – note that inheritances or property owned before marriage are sometimes automatically kept out of the matrimonial pot.
• Maintenance – if one partner is in a stronger financial position, they may agree in advance to support the other party in the event of divorce.
• Savings, shares, and pensions – the full extent of these should be stated upfront.
• Business assets – particularly important if one party already has significant business interests before marriage.

How do I create a postnuptial agreement?

When it comes to the practical side of things, creating a post-nuptial agreement involves several steps.

First, you’ll want to find a postnuptial agreement solicitor to guide you through the process and ensure that everything is fair and legally sound.

Next, you and your spouse need to gather all your financial documents. This includes bank statements, property deeds, and details of any investments or debts. Full disclosure is essential.

Then, you’ll sit down with your solicitor to draft the agreement, ensuring it reflects the wishes of both parties. It’s important to be prepared to negotiate and make compromises so that the final agreement works for both of you.

Here is the exact process to obtain a post-nup agreement after marriage:

1. Initial Consultation
2. Disclosure of Assets
3. Drafting the Agreement
4. Review and Negotiation
5. Signing the Agreement

See more on this topic: Can You Write Your Own Nuptial Agreement?

Things to bear in mind when creating a postnup

Entering into a legal contract is a big step and it’s not something you should do without considerable thought and advice. Here are five things you should bear in mind when considering obtaining a Postnup;

• Children – courts will always prioritise the needs of children in a divorce, so a postnuptial agreement should take account of their financial needs.
• Legal advice – independent legal advice should be sought by each party before signing postnups.
• Wealth – postnuptial agreements are generally more useful for high net worth individuals and couples.
• Prenups – couples who decide to change the terms of an existing prenuptial agreement can revoke this and create a postnup instead.
• Regular Review – postnups should be periodically reviewed to see if they require amending.

As with other such agreements, prenuptial agreements should also be periodically re-evaluated and updated to reflect any changes in your circumstances, e.g. buying a new home or having children.

Avoid believing some of the most common myths about nuptial agreements as they can only hinder your decision-making abilities.

We would advise you to look at your agreement every 4 to 5 years to ensure it’s up-to-date and accurate; this agreement then becomes a postnuptial agreement.

Just like prenups, postnups are also looked upon favourably by the courts in the event of a divorce.

If you would like free family law advice about obtaining a postnuptial agreement online via Divorce-Online please call us on 01793 384 029.

Moving Forward

A post nuptial agreement can provide significant benefits to married couples. While not automatically legally binding, UK courts often uphold postnups if they meet certain criteria.

As a family law solicitor, I advise clients to seek independent legal advice to ensure their post-nuptial agreement is comprehensive, fair, and enforceable. This foresight can save considerable time, stress, and expense, providing both parties peace of mind.