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Post-nuptial agreements provide clarity, protection, and peace of mind for couples who are already married or in a civil partnership in relation to their financial landscape. Post-nuptial agreements can protect a business, manage inherited assets, or simply establish a clear financial framework, ensuring interests are safeguarded whilst strengthening trust and transparency.

What is a post-nuptial agreement?

A post-nuptial agreement, a "post-nup," is an agreement a couple who are already married or in a civil partnership can enter that outlines what they intend should happen to their assets, money, property and financial responsibilities if their marriage or civil partnership were to end.

A post-nup may be entered into because they didn’t enter into a pre-nuptial agreement before getting married, or where there has been a separation followed by a reconciliation. Sometimes post-nuptial agreements are also considered where a party receives a specific asset, such as an inheritance, during their marriage/civil partnership.

Why enter into a post-nuptial agreement?

Everyone will have their own reasons for wishing to enter into a post-nuptial agreement. Entering into a post-nuptial agreement does not mean that you have decided to separate or end your marriage/civil partnership. A post-nuptial agreement might be particularly beneficial where:

  • one of you has substantially greater capital or income than the other.
  • one or both of you wishes to protect assets you owned prior to the marriage/ civil partnership, including inheritances or family trusts.
  • it would be beneficial to define what is considered to be ‘matrimonial property’ or ‘non-matrimonial property’, for example in relation to business assets owned by one of you.
  • one or both of you has children from a previous marriage, civil partnership or relationship, and wishes to protect assets for the purposes of inheritance planning.
  • one or both of you has a connection with, or property in, another country, particularly if you have already formed an agreement in that country.

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Postnuptial agreement FAQs

What can a post-nuptial agreement include?

A post-nuptial agreement is a bespoke document drawn up for your own individual circumstances, and so it can cover almost anything you want it to, although some types of provision are more likely to be upheld.

The focus of the agreement will be on finances. There are certain things that couples usually think about when deciding how they would like to arrange their finances in the event of a divorce/ dissolution, including:

  • what will happen to property that either of you owned prior.
  • what will happen to the family home.
  • what will happen to any property given to you or inherited, or any income or assets derived from trusts.
  • what will happen to money held in joint accounts and any property purchased jointly.
  • what will happen to any personal belongings or possessions owned prior, or acquired during the marriage/civil partnership.
  • what will happen to any saved money earned during.
  • what will happen to your pensions.
  • how will you deal with any debts.
  • will either of you pay or receive any maintenance and, if so, for how long.
  • what kinds of events may require the agreement to be reviewed.
  • what financial arrangements you wish to make for any children you have, or are likely to have.

You can negotiate the terms of an agreement directly with your partner, using mediation or collaborative law, or by using solicitors to negotiate and draft the terms of the agreement on your instructions. We can help you find the process most suitable for you. It is always important to ensure that you receive your own independent legal advice and ensure the agreement is properly prepared by a solicitor.

What are the advantages and disadvantages of post-nuptial agreements?

Advantages

  • They can be flexible and cover your specific circumstances and needs.
  • They can give more certainty as to financial arrangements in the event of a divorce (provided the agreement is entered into in accordance with the criteria set out above).
  • They can be an effective way to protect assets that you may have had prior to the marriage, particularly if you, wish to protect inheritance or assets for any children of a prior marriage or relationship.

Disadvantages

  • The court will always retain the overall ability to decide financial arrangements, and therefore no guarantee can be given that the agreement shall be fully upheld.
  • If there is a divorce/dissolution and one of you no longer wishes to proceed in accordance with the terms of the post-nuptial agreement, the issues may need to be determined by the court if a new agreement cannot be reached.
  • If your circumstances significantly change, (for example, you have children), the agreement shall have to be reviewed and likely amended.
How long after marriage can you get a post-nuptial agreement?

You can enter into a post-nuptial agreement at any point after you are married or have entered into a civil partnership. Many couples choose to create a post-nup after significant life events, such as the birth of a child, a major career change, an inheritance, or a business acquisition. Whether you’ve been married for a few months or several years, it’s never too late to establish financial clarity and mutual understanding with a post-nuptial agreement.

Are post-nuptial agreements enforceable?

In England and Wales, post-nuptial agreements are not legally binding in the event of a later divorce or dissolution. This means that a post-nuptial agreement cannot prevent either party from applying to the court for financial provision upon a divorce/dissolution. However, they are increasingly being upheld by courts if they are considered to be fair, reasonable, meet the parties’ respective needs and when they have been properly drafted.

How do I ensure my post-nuptial agreement is enforceable?

To make a post-nuptial agreement more likely to be upheld, it’s essential to ensure it meets certain legal standards and is fair to both parties. Here are the key factors that increase its likelihood of being enforced:

  1. Independent legal advice. Both parties should obtain independent legal advice to fully understand the terms of the agreement and their rights before signing.

  2. Full financial disclosure. There should be financial disclosure with both parties setting out their financial circumstances in full. This has generally been interpreted as both parties having sufficient information to make an informed decision on whether to enter into the agreement with a full understanding of its implications.

  3. Fair and reasonable terms. The agreement must be fair to both parties, considering the financial needs of each partner and any children involved. Courts are more likely to uphold agreements that do not leave one partner in a disadvantaged position.

  4. Entered into voluntarily. Neither party should feel pressurised by the other party to enter into the agreement, and both parties should feel that they are on an equal footing and are able to freely negotiate the terms of the post-nuptial agreement with one another.

  5. No fraud or misrepresentation. It is important that there is no fraud or misrepresentation by a party in relation to the agreement.

  6. Properly drafted and executed: The agreement should be clearly and professionally written, signed, and witnessed, following all of the correct legal formalities.

  7. Regularly review: If circumstances change significantly (e.g. children, inheritance, business), updating the agreement can help maintain its relevance and enforceability.

What happens if we are not married?

There are a variety of other agreements, which can help to deal with financial assets in the event that you are not married, these are:

  • Cohabitation agreements: Designed for couples who are not married or in a civil partnership, but live together. These agreements help define financial responsibilities and ownership of assets, promoting transparency and assisting to avoid any future disputes.
  • Declarations of Trust: These agreements can clarify property ownership and set out how to deal with the equity in a property if it sold. They can be used as a stand-alone agreement or be used alongside post-nuptial or cohabitation agreements to ensure all financial matters are clearly documented.
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Why use our postnuptial agreement solicitors?

  • We pride ourselves on our outstanding level of service, and our entire family law team dedicate their time to understanding what the client needs and ensure they work effectively as a team to achieve those goals. We provide full support throughout the process, from asset evaluation to negotiation, ensuring that all aspects of your agreement are clearly defined and legally sound.
  • Our family law partner, Paul Linsell, is also a licensed mediator, skilled in facilitating tough conversations. This can help ease difficult discussions if they are needed, ensuring that both parties reach a mutually beneficial and positive outcome.
  • Boyes Turner is ranked as a leading law firm by the legal directories, Chambers UK, and The Legal 500 and has been for many years. When our clients require other services, we have other highly rated private client, estate planning and property solicitors too. 

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