The discovery of an affair, concern about an expected inheritance being squandered or pressure from family or associates to protect your business interests are all possible reasons you might consider making a postnuptial agreement.
Like a prenuptial agreement (prenup), a postnuptial agreement (postnup) can be used to agree in advance what should happen to assets owned by you and your spouse or civil partner in the event you decide to separate.
Glynis Wainman, family law solicitor at Hancock Quins In Watford, explains how they work and the circumstances in which they might be useful.
‘Postnuptial agreements are very similar to prenuptial agreements in that they enable couples to decide in advance of a problem arising how their affairs should be dealt with if they decide to divorce or dissolve their civil partnership. The advantage of making advanced decisions’, says Glynis ‘is that you can do so while you have a level head and without worry that your judgment may be clouded by the emotional turmoil that often consumes us when a relationship falls apart.’
‘The only real difference between a prenup and a postnup is that the former is entered before a marriage or civil partnership takes place while the latter is entered afterwards.’
When might a postnuptial agreement be a good idea?
There are a variety of circumstances in which a postnuptial agreement might be advisable, including where one or both of you:
- has substantially more capital or income than the other;
- wants to protect pre-existing assets, such as a personal inheritance or entitlement to funds from a family trust;
- are involved in a business which you agree should not be broken up to fund a divorce settlement;
- wants to restrict what should and should not be classed as ‘matrimonial property’ and therefore be up for grabs when financial arrangements are being finalised;
- has children from a previous marriage or relationship who you agree ought to be financially supported or receive a set inheritance; or
- owns property in a foreign country.
Are postnuptial agreements legally binding?
Postnuptial agreements are not yet binding in England and Wales, but there is evidence to suggest the courts are increasingly taking notice of them when deciding how assets should be split and in resolving other issues arising when couples choose to divorce or dissolve their civil partnership.
Why have one if they are not legally enforceable?
Although not legally binding, postnuptial agreements can have persuasive value when it comes to finalising arrangements on divorce, particularly where the agreement can be shown to have been freely agreed to and where the provisions made are fair.
Those agreements that tend to carry the most weight with the courts are those where it can be shown that:
- you both had the benefit of independent legal advice at the time the agreement was made;
- you each gave full details of your financial circumstances, so you could make informed decisions before entering the agreement;
- neither of you were pressurised into entering into the agreement, or were subject to any undue influence or duress;
- the agreement is in the correct legal form and includes a statement which confirms that, by entering the agreement, you intend to be bound by it; and
- the agreement is executed as a deed and your signatures have been independently witnessed.
Postnuptial agreements are also likely to be given more weight where your circumstances have not significantly changed since the agreement was signed, or where regular reviews have been carried out to ensure the provisions of the agreement remain fair and reflective of any relevant changes that have occurred.
For advice on postnuptial agreements, or any other family law matter, please contact Glynis Wainman on 01923 650862 or email firstname.lastname@example.org.