Many people will have heard of a Pre-nuptial Agreement (Prenup) and know that this is something couples enter into before they get married to protect their assets. What people may not know is that you can still enter into an agreement to do this, even after the marriage has occurred. This is known as a Post-nuptial Agreement.
Post-nuptial Agreements are for people who are married or in a civil partnership, and are made after the marriage or civil partnership has taken place.
The purpose of the Post-nuptial Agreement is to record the agreement reached between a couple in relation to what will happen to their finances, should the marriage break down. Sometimes, a couple will have entered into a Pre-nuptial Agreement before they got married and then choose to enter into a further Post-nuptial Agreement to confirm the arrangements still stand after they have got married.
Are Post-Nuptial Agreements Legally Binding?
Post-nuptial Agreements are currently not legally binding in England and Wales. So if a couple get divorced the Court does not have to follow what is contained in the agreement when deciding on a financial settlement, although usually it will be taken into consideration.
The guidance for the Judge is that they should implement a Post-nuptial Agreement that is freely entered into by each person with a full appreciation of its implications, unless the current circumstances would make it unfair on either of the parties to do so.
It is therefore very important that a Post-nuptial Agreement is prepared properly. Both people must enter into the agreement voluntarily, without undue pressure, and be informed of its implications. This means that each person will need to have independent legal advice on what they would be legally entitled to if there isn’t a Post-nuptial Agreement in place, and how the agreement may change this.
It is also important for each person to make full disclosure of their assets (including property, money in bank accounts, pensions and income) at the time of the agreement. All of this should be done before the agreement is signed.
What Can be Included in a Post-Nuptial Agreement?
Post-nuptial Agreements can include anything you want them to, but the main purpose is to set out what will happen to your finances if the marriage were to break down. Common things that are covered in Post-nuptial Agreements are:
- 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
- What would happen to joint assets
- What would happen to your pensions
- How you would deal with any debts
- Whether either of you would pay or receive any maintenance and, if so, for how long
It is important that the agreement is reviewed every so often, particularly after any children are born, as the Court will take the children’s needs into account first when deciding on a financial settlement. The Court will not uphold an agreement that does not take the needs of your children into account, or that is detrimental to your children.