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Postnuptial Agreements

Many people will have heard of a prenuptial agreement and know that couples can draw up a prenup before their marriage to record how assets should be distributed if they later divorce. What is less well-known is that you still can record your agreement after you are married with a document called a postnuptial agreement. Whether you were married in the UK or overseas, a postnup may be a sensible step to enabling your arrangements to be honoured should the marriage break down.

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Postnuptial Agreements
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    Toby Yerburgh

    Toby Yerburgh

    Partner - Head of Family Law

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What is a postnuptial agreement?

A postnup is a contract entered into after marriage or civil partnership, outlining the financial terms of a separation or divorce. It can cover any number of areas depending on what the couple agrees to include, such as property ownership and division, inheritance rights, spousal support payments, debt responsibilities and asset division.

What is the purpose of a postnuptial agreement?

The purpose of a postnup is to provide both parties with clear financial security and reassurance should the marriage break down. This can mean certainty for the financially stronger partner that they will not lose their personal wealth on divorce, and confidence for the financially weaker party that they will be provided for should the couple decide to go their separate ways.

Are postnups legally binding?

Postnuptial agreements are not strictly legally binding in the UK. However, it is more difficult to challenge one that has been drawn up properly with the help of a solicitor. A Court generally will seek to implement a postnuptial agreement where:

  • Each person freely entered into the agreement and understood its implications
  • There was full and frank disclosure of assets before the agreement was signed
  • The terms are fair, and
  • Both parties received independent legal advice on the terms of the agreement.

Why should I have a postnup?

Everyone has their own reasons for entering into a postnuptial agreement. However, it may be particularly beneficial where one of you has significantly greater wealth than the other, or you wish to ring-fence assets that you are about to inherit or be gifted by family. It can sometimes be a condition of inheritance that a pre or postnuptial agreement is in place.

It’s recommended that you consider making a postnuptial agreement when relocating to the UK. A prenuptial agreement that was made in another country may not be binding on the English family courts, which means your wishes may not be carried out if you decide to get divorced in England and Wales. Drawing up a postnuptial agreement ensures that your arrangements will be considered fair from an English legal perspective and gives the most confidence that your intentions will be respected if the marriage breaks down.

What can be included in a postnuptial agreement?

Postnuptial agreements are bespoke documents. They can include anything you want them to, including:

  • Financial arrangements for the children (with the caveat that the Court retains an overriding jurisdiction, and the right to child maintenance cannot be given up by the parent as it’s the right of the child)
  • What happens to the family home
  • What happens to other property including investment property and second homes
  • Division of assets and belongings
  • What happens to inheritances and expected inheritances
  • Spousal maintenance – how much will be paid and for how long?
  • Pension entitlements
  • Current and future income
  • Payment of debts

What cannot be included in a postnup?

The Court will take the children’s welfare into account first when deciding on a financial settlement. For this reason, it is not possible to contract out of giving financial support to or for a child.

If the Court considers that your postnup may disadvantage the children, for example by leaving them with a lower standard of living than they would have had without the agreement, then they may decide not to uphold the agreement. Your solicitor can help you draft a robust agreement that has the best chance of standing up in Court.

Do I need a postnup if we already have a prenup?

If there is concern over the strength of a prenup then it can be beneficial to enter into a postnuptial agreement to reaffirm your agreement. This may happen if, for example, either partner did not receive independent legal advice when they entered into the prenup or the prenup was made overseas.

Nuptial agreements are less likely to be unfair if they are recent, so it is common for parties to make a postnuptial agreement after several years of marriage. It is a good idea to review the situation at regular intervals and when a specific trigger event occurs such as the birth of a child.

Answer questions online and receive free, instant and personalised information about your situation.

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    Postnuptial Agreements key contacts

    Postnuptial Agreements

    Postnuptial Agreements

    Postnuptial Agreements

    Many people will have heard of a prenuptial agreement and know that couples can draw up a prenup before their marriage to record how assets should be distributed if they later divorce. What is less well-known is that you still can record your agreement after you are married with a document called a postnuptial agreement. Whether you were married in the UK or overseas, a postnup may be a sensible step to enabling your arrangements to be honoured should the marriage break down.

    • Key contact

      Toby Yerburgh

      Toby Yerburgh

      Partner - Head of Family Law

      ArrowView profile

    • The Team

      Our lawyers have the expertise and experience to provide you with creative, personalised solutions in a clear and understandable way.

      ArrowMeet the team

    • Our Publications

      Discover a wealth of invaluable guidance in the form of guides and brochures written by our expert lawyers.

      ArrowSee our downloads

    • Find out where you stand

      Answer questions online and receive free, instant and personalised information about your situation.

      ArrowGet Started now

    What is a postnuptial agreement?

    A postnup is a contract entered into after marriage or civil partnership, outlining the financial terms of a separation or divorce. It can cover any number of areas depending on what the couple agrees to include, such as property ownership and division, inheritance rights, spousal support payments, debt responsibilities and asset division.

    What is the purpose of a postnuptial agreement?

    The purpose of a postnup is to provide both parties with clear financial security and reassurance should the marriage break down. This can mean certainty for the financially stronger partner that they will not lose their personal wealth on divorce, and confidence for the financially weaker party that they will be provided for should the couple decide to go their separate ways.

    Are postnups legally binding?

    Postnuptial agreements are not strictly legally binding in the UK. However, it is more difficult to challenge one that has been drawn up properly with the help of a solicitor. A Court generally will seek to implement a postnuptial agreement where:

    • Each person freely entered into the agreement and understood its implications
    • There was full and frank disclosure of assets before the agreement was signed
    • The terms are fair, and
    • Both parties received independent legal advice on the terms of the agreement.

    Why should I have a postnup?

    Everyone has their own reasons for entering into a postnuptial agreement. However, it may be particularly beneficial where one of you has significantly greater wealth than the other, or you wish to ring-fence assets that you are about to inherit or be gifted by family. It can sometimes be a condition of inheritance that a pre or postnuptial agreement is in place.

    It’s recommended that you consider making a postnuptial agreement when relocating to the UK. A prenuptial agreement that was made in another country may not be binding on the English family courts, which means your wishes may not be carried out if you decide to get divorced in England and Wales. Drawing up a postnuptial agreement ensures that your arrangements will be considered fair from an English legal perspective and gives the most confidence that your intentions will be respected if the marriage breaks down.

    What can be included in a postnuptial agreement?

    Postnuptial agreements are bespoke documents. They can include anything you want them to, including:

    • Financial arrangements for the children (with the caveat that the Court retains an overriding jurisdiction, and the right to child maintenance cannot be given up by the parent as it’s the right of the child)
    • What happens to the family home
    • What happens to other property including investment property and second homes
    • Division of assets and belongings
    • What happens to inheritances and expected inheritances
    • Spousal maintenance – how much will be paid and for how long?
    • Pension entitlements
    • Current and future income
    • Payment of debts

    What cannot be included in a postnup?

    The Court will take the children’s welfare into account first when deciding on a financial settlement. For this reason, it is not possible to contract out of giving financial support to or for a child.

    If the Court considers that your postnup may disadvantage the children, for example by leaving them with a lower standard of living than they would have had without the agreement, then they may decide not to uphold the agreement. Your solicitor can help you draft a robust agreement that has the best chance of standing up in Court.

    Do I need a postnup if we already have a prenup?

    If there is concern over the strength of a prenup then it can be beneficial to enter into a postnuptial agreement to reaffirm your agreement. This may happen if, for example, either partner did not receive independent legal advice when they entered into the prenup or the prenup was made overseas.

    Nuptial agreements are less likely to be unfair if they are recent, so it is common for parties to make a postnuptial agreement after several years of marriage. It is a good idea to review the situation at regular intervals and when a specific trigger event occurs such as the birth of a child.

    Answer questions online and receive free, instant and personalised information about your situation.

    Postnuptial Agreements Publications

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