Having previously dealt with pre-nuptial agreements, divorce solicitor Grace Clark now looks at post-nuptial agreements.
What are post-nuptial agreements?
A post-nuptial agreement is a contract that parties can enter into after they have begun their marriage or civil partnership. The purpose of a post-nuptial agreement is to set out what should happen in relation to financial matters should the marriage or civil partnership break down.
The difference between post-nuptial agreements and pre-nuptial agreements is simply when the agreement was entered into. If the agreement was entered into prior to the marriage or civil partnership it is pre-nuptial agreement.
Why enter into a post-nuptial agreement?
There are a number of reasons why parties may choose to enter into a post-nuptial agreement and it does not imply that the parties are already thinking about separating.
Reasons for couples deciding to enter into a post-nuptial agreement include:
- a desire simply to be organised;
- where one party has a greater income or capital than the other;
- where a party has previously separated and reconciled;
- where the parties wish to protect any pre or non-matrimonial assets;
- where the parties wish to protect their assets for the benefit of their children;
- to enable the parties to plan financially for the future; and
- to ensure that assets can be dealt with in another jurisdiction.
What can be included in a post-nuptial agreement?
There are no restrictions on what can be included in a post-nuptial agreement. This means they can be tailored to suit the needs of each individual couple.
As the purpose of a post-nuptial agreement is to set out what should happen to the parties assets and finances, most post-nuptial agreements set out how the parties intend to:
- deal with debts;
- divide any personal or business assets;
- divide finances;
- deal with pensions; and
- deal with maintenance.
Do I need a post-nuptial agreement if I already have a pre-nuptial agreement?
Post-nuptial agreements can be used to reinforce the intentions of the parties when they entered into a pre-nuptial agreement.
If there has been a significant change in the parties circumstances since the signing of the pre-nuptial agreement, they may wish to reiterate that their intentions have not changed. For example, if the parties were to have a child or there has been a significant change in their financial position the parties may wish for it to be reflected and brought to the attention of the Court that they still wish to abide by the terms of the pre-nuptial agreement should they separate.
Are post-nuptial agreements binding?
Post-nuptial agreements significantly limit the risks of disputes between parties upon separation and although not strictly binding, they do carry an increasingly significant amount of weight across the courts in England and Wales. Although not bound to follow the terms of a post-nuptial agreement, the court will give its contents due consideration prior to determining how a couple’s finances should be dealt with.
In order to ensure that the courts give post-nuptial agreements as much weight as possible the parties should ensure that:
- they both received independent legal advice before entering into the agreement;
- they had full financial disclosure;
- the agreement is fair in all the circumstances; and
- that neither party was misrepresented or pressurised, causing them to enter into the agreement.
How we can help
If you would like to know more about post-nuptial agreements then contact our free legal helpline. We will be happy to discuss your requirements and provide you with an estimate of the legal fees for preparing an agreement.
Call us on 0333 888 0419 or email us at [email protected]
