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Postnuptial agreements

Taking place after the marriage, a postnuptial agreement sets out how the couple’s assets and property would be split should the couple divorce or legally separate

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What is a postnuptial agreement

Postnuptial agreements (postnups) like prenuptial agreements (prenups) are contracts made between the two parties within the context of a marriage and are intended to set out the financial consequences of a future divorce, should your marriage ever break down. Having such an agreement in place can minimise conflict should your relationship break down.

Prenups and postnups are becoming increasingly common because in entering into such agreements couples hope that they can avoid the uncertainty, acrimony and cost that can arise during a divorce.

It can be perceived as not being romantic or already setting a marriage up for failure, however, with a high number of marriages sadly ending in divorce and with an increasing number of couples marrying later in life when they have already accumulated wealth, postnuptial agreements can help to identify how the couple both agree to separate their assets to reduce the risk of conflict if the worst happens.

What is a postnuptial agreement?

A postnuptial agreement is just like a prenuptial agreement. The only difference is that the latter takes place before a couple marries or enters a civil partnership and the former happens afterwards. A contract is drawn up which provides details on how the couple’s assets and property would be split should the couple divorce or legally separate. One of the key components of the contract is that the parties agree that they will ask the court to make a “consent order” which separates their financial resources (e.g. house, investments, pensions etc.) in accordance with the postnuptial agreement.

Are postnuptial agreements legally binding?

The court has an overriding discretion to make such financial awards as it considers to be fair in the circumstances of any particular case, by reference to a whole range of factors. For example: how long the marriage lasted, the ages of the parties through to the extent of the financial assets and the contributions both parties have made to the marriage. The existence of a postnuptial agreement is just one factor for the court to consider but such agreements are given significant weight if properly drafted and in the right circumstances.

What are the circumstances to consider if you want your agreement to be upheld.

As you are married you should firstly consider what would be a fair outcome at the time you want to enter into the agreement. You may have just got married or you may have been married for a very long time. That passage of time will have had an impact on the financial settlement you would have to provide or would expect to receive. Whatever you consider is fair, you need this to be agreed with your spouse / civil partner. If it is not then it will not be signed and you are putting your marriage / civil partnership in jeopardy. How you communicate your wish to enter into such an agreement also needs to be handled sensitively and with understanding as to what you are trying to achieve and why. Sometimes a postnuptial agreement might be intended to create a more balanced distribution of assets between a couple where before it was under one person’s control. It maybe that something has happened with the marriage which has given one party cause for concern about its future, prompting them to contemplate what might happen if a future divorce were to occur. A postnuptial agreement might be a way of the parties showing greater trust in each other.

A postnuptial agreement can both address the current circumstances of the marriage and also make provision for foreseeable changes in the future such as the addition of children to the family. It can make arrangements for what would happen with a house, other properties, bank accounts and savings, pensions, business interests and also can make provision for income either through maintenance provision or conversely making it clear whether a “clean break” dismissing future maintenance claims is intended.

Once the postnuptial agreement is in place, you can still make changes and updates to the terms depending on your circumstances, but both parties will have to agree each time.

What should a postnuptial agreement include?
A standard postnuptial agreement could include details on the following:
- Assets and debts (and how any outstanding debts will be paid for)
- Income (including any expected gifts and/or inheritance)
- Any future income or gains (including property)
- A list of personally and jointly owned belongings
- How much maintenance will be paid to your ex-partner in the event of a divorce/separation?
- How any property will be divided (such as second homes)
- Any insurance coverage including life, medical and disability

It is also important that you are both fully honest and open when it comes to disclosing your financial circumstances. A failure to make full disclosure could well render a postnuptial agreement unenforceable. Ultimately such agreements can only be enforced once a court has made an order which reflects the terms of the agreement.

It is important that both you and your partner obtain independent legal advice from a solicitor. However, to avoid potential conflicts of interests, you would both need to instruct different firms of solicitors. At Stowe Family Law we have many years of experience in drafting these agreements and will be happy to meet with you to discuss your requirements and whether they can be achieved.