If you and your partner do not already have an agreement in place, it may be in your best interests to sign a postnuptial agreement (postnup). A postnup sets out exactly what you wish to happen to your assets if you divorce or separate.
While postnups may not be the most romantic notion, a well drafted agreement offers a sensible level of protection for couples and will help to save time, money and acrimony further down the line.
At Wells Burcombe, our team of expert family law solicitors have substantial expertise in drafting postnups, as well as advising anyone who intends to sign a postnup their partner has drafted.
If you are considering a postnuptial agreement or have already signed an agreement and need further advice, we can help you.
Our postnuptial agreement solicitors’ expertise
Our postnuptial agreement solicitors can work with you to put a bespoke document in place that protects your best interests and ensures you are fully prepared if you separate from your partner in the future.
When instructed, our team will guide you through the entire process of making a postnup, ensuring that you are fully aware of the implications of making certain additions or omissions may be. With our support, you can be sure that the final postnup will fully reflect your wishes, putting you in the best possible position should your circumstances change.
Making a legal contract with your partner may not be the most romantic gesture, especially if you have already established a life together as a married couple. However, none of us knows what may be around the corner, which is why a postnup can prove to be invaluable.
An effective agreement can ensure that you are both on the same page about sensitive financial matters. By clearly establishing who owns what and what both of your financial responsibilities are, you will be putting a strong foundation in place and reduce any potential conflict.
Our team will make sure that your experience of creating a postnuptial agreement is as simple and straightforward as possible, working to negotiate an agreement that is fair to both parties.
Why make a postnuptial agreement?
It is important to understand that the law on how money and property are treated during marriage and upon divorce has not changed for a number of years. Conversely, modern relationships have changed substantially.
- People are now less likely to get married early on in their adult life. They then go on to accumulate more money before marrying, which they would then like to protect in the event of a divorce.
- Two-income households are now very common, with women being much more likely to continue working after marrying.
- The likelihood of someone being in more than one marriage has increased. People are also more likely to have children from previous relationships.
This means that, when couples marry, they are likely to already have significant assets or pre-existing arrangements that they would like to protect.
This is not the only consideration many people need to make. There are often additional financial considerations that an individual would like to keep separate from matrimonial finance, such as inheritance, business assets or expected windfalls.
Postnuptial agreements can also be a simple way of avoiding future conflict. If both parties have an agreement in place, marital conflict is much less likely to be an issue, saving time, money and stress. It can also make the separation easier to deal with for any children in the relationship.
Are postnuptial agreements enforceable?
It should be noted that postnups are not legally binding. However, they can be enforced by the courts so long as certain criteria are fulfilled, which render the postnup ‘valid’.
What are the requirements for a valid postnuptial agreement?
The criteria for a valid postnuptial agreement include:
- The postnup was freely entered into by both parties
- Both parties received independent legal advice prior to signing
- Both parties understand the agreement and its implications
- Both parties were honest and forthcoming about their financial resources
- The agreement is not unfair to either party
What is a prenuptial agreement?
Prenuptial agreements (prenups) are almost identical to postnups. The main difference between the two is the point at which the agreement is entered into.
Prenups are signed prior to the marriage rather than during the marriage. Just like postnups, prenups set out how the division of finances will work if the couple separates in the future.
You can learn more about our expertise with prenups here.
Do I need a postnup if I have a prenup?
If you already have a prenup in place, it will not be essential to get a postnup. However, if you and your partner agree that the prenup is no longer appropriate, or you would like to change the terms to provide a more accurate reflection of your financial circumstances, you can apply to have it legally amended.
The agreement will still need to be formally signed and witnessed by both parties for it to be considered valid.
When should I get a postnup?
A postnup can be signed at any point during a marriage. However, if you would like to make postnup, it may not be sensible to do so while you are experiencing relationship difficulties, as the added emotion and tension may make it difficult to agree on fair and balanced terms.
If you are unsure whether you should sign a postnup, this is something our family law solicitors can advise you on.
What cannot be included in a postnuptial agreement?
While postnups do cover a wide range of financial issues, there are strict guidelines as to what can be included.
The types of issues that cannot be included in a postnuptial agreement include:
- Child arrangements and parenting issues
- Child maintenance
- ‘Personal’ or lifestyle terms
- Illegal or unfair terms
Can I write my own postnup?
In theory, you can write the terms of your postnup yourself. However, this is not advisable, as the documents can be very complex, and the implications for making a mistake in the agreement can be substantial.
It is also important to remember that a postnup can only be enforced if both parties have taken independent legal advice.
Can a postnuptial agreement save a marriage?
If you are facing difficulties in your marriage, resorting to signing a prenup won’t necessarily provide a swift resolution. While it may help to clarify certain issues that are causing tension, a postnup won’t always be the answer.
A postnup can also only be successful if both parties are willing to agree to the terms, so it’s important that you talk through your intentions and seek legal advice before you consider taking action.
Can we advise both you and your partner?
Unfortunately, your partner will need to find their own legal representative. A postnuptial agreement will only be taken into consideration if both parties have sought their own independent legal advice.
Contact our postnuptial agreement solicitors in London and St Albans
Get friendly, practical advice about entering into a postnuptial agreement with your prospective partner. We can offer you a free initial telephone consultation to talk about how we can help and to provide a quote.