What is a post-nuptial agreement?
A post-nuptial agreement (also called a post-nup or a post-marital agreement) is designed to deal with the same situation as a pre-nup. In other words, deciding what should happen to each partner’s assets after divorce. However, unlike a pre-nuptial agreement, which is agreed before a couple is married, a post-nuptial agreement is entered into by the couple during their marriage.
Are post-nups binding on the court?
Post-nuptial agreements are not strictly binding on the court in the event of a later divorce, 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?
A post-nuptial agreement cannot prejudice the interests of any children in your family.
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.’
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Post Nuptial Agreements
Similar to pre-nuptial agreements, post-nuptial agreements are written documents signed by a couple after their marriage or upon entering a civil union.
Generally, the post nuptial agreement encompasses the terms according to which the couple’s financial assets will be divided in case of divorce or estrangement.
It is considered to be good practice to enter a post-nuptial agreement with your partner to avoid any major disagreements over the division of assets in case of separation or divorce.
While many couples may find it strange to discuss the terms of their divorce right after getting married, but it is often a prudent decision. A post nuptial agreement can be beneficial and help couples go through divorce or separation without any serious dispute.
Preparation of any kind of legal agreement or document needs to be done under the supervision of an experienced and trustworthy solicitor. Only learned and knowledge law practitioner can provide valuable advice regarding what can and should be included in a post-nuptial agreement and how it should be worded.
How Can We Help?
At Atlas Law Solicitors, we provide extensive services to our clients in the preparation of post nuptial agreements.
- Advising our clients on what they can and should include in their post-nuptial agreement
- Providing our clients with legal advice
- Reasonable fees with a high professionalism
- Over 15 years’ experience
Our reasonable fees, exemplary professionalism, and most importantly, knowledge of the law allow us to provide you with excellent legal services in an effective and reliable manner.