This is a question we’re hearing from more and more couples. In some instances, it’s when we tell them they have left it too late to get a prenup before marriage.
While you cannot get a prenup after marriage, there is good news. There is an equivalent that can be prepared and signed after the marriage or civil ceremony has taken place – it’s called a postnuptial agreement or ‘postnup’.
What is a postnuptial agreement?
Like a prenup, a postnuptial agreement is a written contract, but between parties who are already married. It allows you to specify how your financial assets would be divided if you were ever to divorce. As such, a postnuptial agreement essentially functions in the same way as a prenuptial agreement after marriage.
It may seem like a very unromantic idea, but having a postnuptial agreement can save a lot of time, bad feelings and money if you were to separate or divorce in later years.
Is a postnuptial agreement legally binding?
Following the case of McLeod v McLeod in 2008, the Privy Council ruled that a postnuptial agreement signed after the marriage or civil partnership has taken place can, in the right circumstances, be legally binding in the same way as a prenuptial agreement.
The best way to ensure (as far as possible) that the agreement is legally binding is to follow these steps:
- Have full and frank open disclosure of your property, assets and income with your spouse and prepare a detailed schedule of these assets, which is attached to the agreement
- You should both obtain independent legal advice from your own solicitors
- The agreement must not be manifestly unfair to one party or the other
- Although you can set out in the agreement arrangements for the division of your property, assets and income, you cannot use the agreement to exclude yourself from paying maintenance for any children in the future
- Ensure there is a provision in the agreement for a review either at regular intervals during the marriage or at any important life change, i.e. a child being born or a house move.
It is essential to have expert legal advice when drafting a postnuptial agreement and before signing. This helps to make sure that the requirements have been met for the agreement to have legal standing.
You should bear in mind that, in England and Wales, the divorce courts do not have to be bound by the terms of a prenuptial or postnuptial agreement, as these agreements are not automatically legally binding.
However, the courts have in recent years started to take these agreements into consideration more and more often, depending on the circumstances of each individual case and provided they’ve been prepared in the right way.
Getting expert postnuptial agreement advice will increase the likelihood that a court would take the agreement into consideration during a divorce if required.
What can a postnuptial agreement cover?
The agreement can cover one point (e.g. arrangements for a family business) or many points, including:
- 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
When making or being asked to sign a postnup, it is essential to get advice from an experienced family lawyer. They will be able to make sure that the terms of the agreement match your specific circumstances and requirements. This includes ensuring the agreement is fair to you and any children, with nothing overlooked.
How do I get a postnuptial agreement?
The first step in getting a postnuptial agreement is to speak to a specialist family lawyer. They will be able to advise you on what to consider and what the agreement should cover.
You will also, of course, need to discuss the idea with your spouse. Whether you do this before or after speaking to a lawyer is up to you, but it may be helpful to have a really clear idea of what is involved before having what can sometimes be a difficult conversation.
To make the agreement, both spouses will need to make full disclosure of their financial assets. You will need to agree on how they will be divided if you separate and any other practical matters you wish to resolve, such as who would stay in the family home.
If you have children, their financial needs must be considered as a court will always put the needs of children first, so a postnup must cover this to have legal weight.
Once you have agreed the terms of the postnup, you will need to have a solicitor draft the agreement for you. Both spouses will need to take independent legal advice before signing to give the contract legal standing.
How long after marriage can I get a postnuptial agreement?
You can get a postnuptial agreement at any point after you get married.
Can you change a prenup after marriage?
You cannot change a prenup after marriage, which is one of the other reasons for making a postnup. If your situation has changed and the terms of your prenup are no longer suitable, you can replace it with a postnuptial agreement.
Reasons for replacing a prenup with a postnup can include where you have had children who are not accounted for in the prenup, as well as where either spouse’s financial situation has changed significantly. A prenup that does not match your current situation is likely to be unenforceable, especially if it would prejudice the needs of children.
For these reasons, it is sensible to regularly review a prenup while married if you have one in place.
Our postnuptial agreement experts will be happy to advise on creating a postnup to replace a prenuptial agreement after marriage, so please do not hesitate to get in touch for advice.
Should I sign a postnuptial agreement?
Before signing a postnuptial agreement, you need to be confident that it is fair to you and any children you have. It is, therefore, essential to have an experienced family lawyer review the agreement for you before signing. This is also a requirement for the postnup to have legal standing, so this is not something that can be overlooked.
Whether to sign should always be entirely up to you. If you feel pressured to sign, then this may be a sign that there are issues with your relationship or that you are experiencing coercive or controlling behaviour. If you are pressured to sign a postnup, this would likely invalidate the agreement, so it absolutely must be your free choice to sign.
Talk to Woolley & Co Solicitors about a postnuptial agreement
At Woolley & Co Solicitors, our family lawyers can help you to get a fair and robust postnuptial agreement in place simply and without introducing unnecessary conflict to your relationship.
Family lawyer St Neots