How do post-nuptial agreements work?

Many people are familiar with the concept of a pre-nuptial agreement, or ‘pre-nup’, that allows you to protect yourself in the event of divorce. However, fewer people are aware that you can also create a similar agreement after you are married called a post-nuptial agreement.

Post-nuptial agreements offer the same basic provisions as a pre-nup, allowing you to decide how your finances will be divided if your marriage ends. The difference is that they can be entered into at any time after your marriage takes place.

This means that, even if you did not create a pre-nuptial agreement, or feel that the pre-nup you created is no longer appropriate, it is not too late for you to get the same kind of protection and peace of mind.

When to create a post-nuptial agreement?

People will often consider a post-nuptial agreement when there has been a significant change in their circumstances, such as if they have had children or one of the couple has received or expects to receive an inheritance.

They are also sometimes used in situations such as where one of the couple has been unfaithful and they have agreed to stay together, but the other partner wants some extra insurance against the potential failure of the marriage.

What to include in a post-nuptial agreement

Exactly what you will include in a post-nuptial agreement will be depend on the circumstances, but will often include things such as:

• What will happen to the family home
• How savings, shares and other assets will be divided
• What entitlement, if any, the spouses may have to each other’s pensions
• Where any children the couple have together will live

Are post-nuptial agreements legally binding?

Just as with a pre-nup, post-nuptial agreements are not currently legally binding in England and Wales, meaning they can be disregarded by a judge during divorce proceedings.

However, a judge will only normally do this is they believe the post-nuptial agreement was improperly prepared and is unfair to one of the parties.

For a post-nup to have the best chance of standing up in court, the following conditions should be met when it is first created:

1. The agreement must be fair to both parties and realistic.
2. Both parties must have independent legal advice before signing the agreement.
3. Neither party must be under pressure to sign the agreement.
4. There must be a full and frank disclosure of both parties’ assets before the agreement is made.

A post-nup may also be considered invalid if there has been a significant change to the couple’s circumstances since it was made e.g. if they have had children or one of them has acquired significant new assets, such as an inheritance.

Crisp & Co’s family lawyers are experts in pre-nuptial agreements, post-nuptial agreements and co-habitation agreements. We can provide the sensitive, pragmatic advice and guidance you need to create an agreement that protects both parties’ interests, helping to resolve potential points of conflict and give you peace of mind for the future.

To find out more, speak to one of our expert family lawyers now by calling 020 3797 4952 or use the enquiry form below to request a call back.