What is a postnuptial agreement?
Postnuptial agreements are essentially the same as Prenuptial agreements apart from the fact that they are entered into after marriage or civil partnership rather than before. Postnups set out the assets of one spouse and another (or civil partners), and state which of these are shared and split equally in the event of divorce, separation or death, and which are individual assets to be retained in whole by the individual or their relatives.
Some benefits of postnups include:
providing extra peace of mind and certainty about financial futures in case the relationship breaks down
serving as a record of the assets which have been brought into the marriage by each spouse or civil partner
if there are children from previous marriages, a postnuptial agreement can help to protect their inheritance
high net worth married couples who move to the UK may want to avoid having their finances determined by English courts (which are considered to be favourable to the non-wealth-creating spouse) in the event of divorce
How do you make a postnuptial agreement?
Postnups should be made in writing and be signed by both parties and two witnesses. The agreement should set out all financial assets and debts of the marriage and explain how these will be distributed in the event of a divorce, dissolution of civil partnership or death. You can create your Postnuptial agreement.
In the case of complex financial arrangements, you should Ask a lawyer for advice on creating your document.
Note that an independent lawyer should also provide advice to both parties in advance of it being signed, to ensure that they are aware of its implications. Ask a lawyer for more information or make use of Rocket Lawyer’s independent legal advice service for postnuptial agreements.
Are postnups legally binding?
England and Wales
Just as with prenups, postnups are not currently legally binding in England and Wales. However, a landmark case (Radmacher v Granatino) ruled that courts should uphold a prenuptial agreement if it is fair - and it would follow that any valid postnuptial agreements should also be upheld. However, in order to increase the likelihood of a court following the instructions of postnups, the following points should be taken into account:
both spouses (or civil partners) should receive independent legal advice regarding the agreement prior to signing it
the full assets of each party should have been disclosed properly
there should be no pressure on either party to sign the agreement
there should have been no significant changes to the financial or family situation
the terms of the agreement should be fair
In Scotland, postnuptial agreements (just like prenuptial agreements) are legally binding provided they are validly executed as a contract and are fair and reasonable at the time they are entered into.
A postnuptial agreement is fair and reasonable if:
each party has had sufficient time to fully consider and understand the terms of the postnuptial agreement before entering into it
each party is aware of all information necessary to allow them to fully consider and understand the terms of the postnuptial agreement
each party must have received separate and independent legal advice
neither party was under pressure or duress to sign the agreement against their will
What is the importance of financial disclosure?
If there has not been full and frank financial disclosure of the assets of both parties prior to the creation of a postnuptial agreement, the courts are more likely to decide that it is invalid and therefore impose their own financial remedies in the case of a divorce.
Should my postnup record my habitual residence and domicile?
Like prenups, postnups should set out where each party is habitually resident and domiciled.
Your habitual residence is the country where you regularly live. For example, England if you live there normally, even if you go on extended holidays to other countries.
Your domicile is the country to which you have close ties. Essentially, it is the country where you have voluntarily chosen to live, with the intention of making it your permanent home. For example, if you were born in England and currently live there as your permanent home, England will be your domicile. If you were born in England, but have your permanent home in Canada (eg you work there and live there with your family), Canada would likely be your country of domicile
For more information, read How to make a prenuptial agreement.
What should I consider before making a postnuptial agreement?
It is important to consider whether making a postnuptial agreement will have a positive or negative impact on your particular relationship. Postnups are sometimes made because a marriage or civil partnership is going through difficulties. Discussing practicalities at this sensitive time may precipitate the end of a relationship - or it might create a solid foundation upon which to build things back up - depending on the type of relationship.