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Family Law Solicitor Most people broadly understand the nature of a prenuptial agreement. Fewer, however, have encountered the term ‘postnuptial agreement’ or ‘postnup’.
What is a postnuptial agreement?
As the name suggests, whereas a prenuptial agreement, or ‘prenup’, is a written agreement entered into before your marriage, a postnuptial agreement occurs at any time afterwards. Like a prenup, a postnup should detail your joint assets and explain how they will be divided should you get divorced.
Are postnups legally binding?
Many couples find it surprising that, as with prenups, postnups are not legally binding in England and Wales. However, the court always considers them very carefully. The court should uphold the terms of a postnup if satisfied that certain conditions are met, namely:
- both of you understood the implications of the agreement, and it was entered into voluntarily and without duress;
- there was full disclosure between you of your assets and liabilities;
- your children (if any) are not subjected to any prejudice by the agreement;
- both of you obtained independent legal advice before entering into the agreement;
- the terms of the agreement are fair.
When should I get a postnup?
There is no perfect time to enter a postnuptial agreement. However, it’s generally not a good idea to consider one if you are going through relationship difficulties. Increased emotions can make it more difficult to agree on what is fair and balanced.
If you already have a prenup, you may both wish to take advice on signing a postnup if you believe that your circumstances have changed or that your prenup may not be strong enough to satisfy the court on divorce.
A typical scenario where a couple will enter into a postnup is on reconciliation following relationship breakdown to safeguard against future breakdown.
How do I get a postnuptial agreement?
As with a prenup, there is considerable scope to get a postnup wrong, either in content or procedure. Therefore, always avoid homemade postnups and take legal advice.
The need for each of you to take independent legal advice can act as a deterrent. However, in most cases, postnups are relatively inexpensive. In any event, the potential certainty it brings to any future relationship breakdown will likely render the cost a worthwhile investment.
You may also be concerned that the requirement to take independent legal advice will create tension, mistrust, and disagreement. However, a solicitor must advise you objectively on the proposed postnup to enable you to make an informed decision. Remember, if a potential issue is highlighted to you, your partner’s solicitor has very likely raised the same issue with them. And, of course, failing to take independent advice at all can result in the court not upholding the agreement.