Post Nuptial Agreement
Are Post-Nuptial Agreements Binding In the UK?
Postnuptial agreements are not strictly binding in the UK, but it is likely that a post-nuptial agreement will be respected by the court unless the effect of the agreement would be unfair.
In order to do the best job of ensuring that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full and take independent legal advice on the agreement and its effects.
Agreements are generally less likely to be considered to be unfair if they are recent or if circumstances have not changed since and if both people knew exactly what they were getting into when the agreement was made, both legally and financially, without any undue pressure being applied.
It is possible that the court might uphold part of an agreement while considering a different part to have an unfair effect.
What sorts of things does a post-nup cover?
A post-nuptial agreement is a bespoke document drawn up for the two of you for your particular circumstances, so it can cover almost anything you want it to. There are certain things that couples usually think about when deciding how they would want to work things out if the marriage does not work:
- What would happen to property either of you brought into the marriage?
- What would happen to the family home?
- What would happen to any property given to you or inherited during the marriage or any income or assets derived from trusts?
- What would happen to money held in joint accounts and any property purchased jointly?
- What would happen to any saved money earned during the marriage?
- What would happen to your pensions?
- How would you deal with any debts?
- Would either of you pay or receive any maintenance and, if so, for how long?
- What kinds of events might require the agreement to be reviewed?
- What kinds of arrangements would you like to make for any children you have or are likely to have, both in financial and in practical terms?
What happens if we have children?
It is usual to build in provision for a review of the agreement if and when you have children, so that the children’s needs can be considered and assessed at that time, with possible changes made to any expectations of the adults.
In the event of a divorce, if the court is asked to intervene in financial arrangements its first consideration is always the children involved. If the court considers that any agreement of the adults may adversely affect their children, e.g. by restricting any expectations of a lifestyle they would otherwise have had, it is likely to consider that it is not fair to uphold the agreement in the circumstances. It is not possible to contract out of giving financial support to or for a child.
In 2010, the Supreme Court gave the following guidance in relation to post-nuptial agreements:
‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’
What is included ?
- A consultation to discuss what you would like to be covered in the agreement
- Advising you as to the issues you may wish to consider including in the agreement
- Preparation of financial disclosure (schedule of assets)
- A further meeting to discuss the other party’s financial disclosure (if necessary)
- Discussions with you via letter, telephone or email to address matters arising during the process
- Correspondence on your behalf with the other party’s legal representative to finalise the agreement and arranging for signature
- Storing a copy of an agreement for a period of 6 years
We are happy to arrange an initial consultation to take place either in the office, by telephone or by video (i.e. Skype, FaceTime or Whatsapp video). If your consultation is going to take place via telephone or video, we will ask you to send us your photo ID before the meeting.
Free Initial Consultation
100% Confidentiality Guaranteed