We’re encountering this question more frequently from couples, especially when they discover it’s too late to secure a prenuptial agreement before marriage.
Although you can’t obtain a prenup after marriage, there’s a positive alternative. You can prepare and sign a similar document after marriage or a civil ceremony, known as a postnuptial agreement or ‘postnup’.
What is a postnuptial agreement?
Similar to a prenuptial agreement, a postnuptial agreement is a written contract made between spouses who are already married. This agreement outlines how financial assets would be divided in the event of a divorce. Essentially, a postnuptial agreement serves the same purpose as a prenuptial agreement but is established after marriage.
While it might seem unromantic, having a postnuptial agreement can prevent future disputes, mitigate negative emotions, and save time and money in the event of a separation or divorce later on.
Is a postnuptial agreement legally binding?
In the case of McLeod v. McLeod in 2008, the Privy Council ruled that a postnuptial agreement signed after marriage or civil partnership can, under the right circumstances, be legally binding, similar to a prenuptial agreement.
To increase the likelihood of the agreement being legally binding, it’s advisable to follow these steps:
- Have full and frank open disclosure of your property, assets and income with your spouse and prepare a detailed schedule of these assets, which is attached to the agreement
- You should both obtain independent legal advice from your own solicitors
- The agreement must not be manifestly unfair to one party or the other
- Although you can set out in the agreement arrangements for the division of your property, assets and income, you cannot use the agreement to exclude yourself from paying maintenance for any children in the future
- Ensure there is a provision in the agreement for a review either at regular intervals during the marriage or at any important life change, i.e., a childbirth or a house move.
It’s crucial to seek expert legal advice when drafting and before signing a postnuptial agreement. This ensures that the agreement meets the necessary requirements to have legal standing.
It’s important to note that in England and Wales, divorce courts are not obligated to adhere to the terms of a prenuptial or postnuptial agreement, as these agreements are not automatically legally binding.
However, courts have increasingly begun to consider these agreements, depending on the circumstances of each case and if they have been prepared correctly.
Obtaining expert advice on postnuptial agreements can enhance the likelihood that a court will consider the agreement during divorce proceedings if necessary.
What can a postnuptial agreement cover?
The agreement can cover one point (e.g. arrangements for a family business) or many points, including:
- Division of property already owned by either party or jointly
- Division of property purchased after the signing of the agreement solely or jointly
- Any agreement for spousal maintenance
- Division of pension assets
- Payment of current or future debts held in sole names or jointly
- Arrangements for any gifts exchanged or received by either party from each other or from others
- Future inheritance that either party may receive
- What you will leave by Will to the other party
- Arrangements for life insurance
When creating or considering signing a postnuptial agreement, it’s crucial to seek advice from an experienced family lawyer. They can ensure that the terms of the agreement align with your unique circumstances and needs. This involves verifying that the agreement is equitable for you and any children, ensuring that no important aspects are overlooked.
How do I get a postnuptial agreement?
The first step in obtaining a postnuptial agreement is to consult with a specialised family lawyer. They will provide guidance on important considerations and the scope of the agreement.
Subsequently, it’s essential to discuss the idea with your spouse. Whether this discussion happens before or after consulting a lawyer is at your discretion, but having a clear understanding of the process beforehand can facilitate what might be a challenging conversation.
To formalise the agreement, both spouses must fully disclose their financial assets. An agreement is necessary on how these assets will be divided in case of separation and other practical matters, such as residence in the family home.
For couples with children, it’s imperative to address their financial needs within the agreement, as courts prioritise children’s welfare. This inclusion ensures the legal validity of the postnuptial agreement.
Once the terms are finalised, a solicitor will draft the agreement. Both spouses must obtain independent legal advice before signing to confer legal validity on the contract.
How long after marriage can I get a postnuptial agreement?
You can get a postnuptial agreement at any point after you get married.
Can you change a prenup after marriage?
You cannot modify a prenuptial agreement after marriage, which is one of the reasons to consider a postnuptial agreement. If your circumstances have changed and the terms of your prenup no longer align with your situation, a postnuptial agreement can serve as a replacement.
Common reasons for replacing a prenup with a postnup include the birth of children who were not addressed in the original agreement or significant changes in either spouse’s financial status. An outdated prenup that fails to accommodate current circumstances could be deemed unenforceable, especially if it neglects the needs of children.
To ensure the relevance and enforceability of your marital agreement, it’s prudent to periodically review your prenuptial agreement during marriage.
Our postnuptial agreement experts are available to advise on creating a postnup to replace an existing prenuptial agreement after marriage. Please reach out for personalised advice and guidance.
Should I sign a postnuptial agreement?
Before signing a postnuptial agreement, it’s crucial to ensure that the terms are fair to you and any children involved. Therefore, it’s essential to have an experienced family lawyer review the agreement before signing. This legal review is not only prudent but also necessary for the postnup to be legally valid and enforceable.
The decision to sign should always be entirely yours. If you feel pressured or coerced into signing, it could indicate underlying issues in the relationship or potentially coercive behaviour. Any sign of pressure or coercion could invalidate the agreement, emphasising the importance of freely choosing to sign.
Contact us for help with postnuptial agreements
At DLS Solicitors, our family lawyers can assist you in establishing a fair and robust postnuptial agreement efficiently and without creating unnecessary conflict in your relationship.
