Following the case of McLeod v McLeod in 2008, the Privy Council ruled that a post-nuptial 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 to 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 arrangement 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.
The agreement can cover one point (i.e. 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
Like a prenup, a post-nuptial agreement is a written contract between parties who are already married. It may seem like a very unromantic idea but having a post-nuptial agreement can save a lot of time, bad feeling and money if you were to separate or divorce in later years.
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 post-nuptial 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.
Family lawyer St Neots