A Post Nuptial Agreement is an agreement entered into by a couple after a marriage or civil partnership has taken place. It allows them to record how assets, property and finances should be dealt with in the event of a future separation or divorce, reducing the potential for disputes later on.
Common scenarios include protecting inherited wealth, safeguarding business interests, reflecting a significant change in financial circumstances, or updating an outdated pre-nuptial agreement. In order for a post nuptial agreement to be relied upon if a future divorce or separation occurs, it must be carefully drafted, supported by financial disclosure and entered into freely by both parties. Obtaining specialist legal advice is therefore essential.
Led by Sobiah Hussain, Head of Private Family Law, our team advises clients across England and Wales on all aspects of post nuptial agreements. Whether you are considering a new agreement, updating an existing agreement or seeking advice following a change in financial circumstances, we can provide clear and practical guidance throughout.
What Can Be Included in a Post Nuptial Agreement?
A post nuptial agreement can address a wide range of financial issues, including:
- Inherited assets and future inheritances
- Property and the family home
- Business interests
- Savings and investments
- Pensions
- Financial support following separation
How We Can Help
Every post nuptial agreement should be tailored to the specific circumstances of the couple involved. Whilst some clients have already agreed the terms they wish to include, others require advice regarding the options available and the potential implications of different arrangements.
We can advise throughout the process, assist with negotiations where required, prepare the agreement and ensure that the necessary legal safeguards are followed. We can also advise on the financial disclosure required and work alongside your spouse’s solicitor.
Most post-nuptial agreements can be completed within a few months, depending on the complexity of the finances involved and how quickly both parties are able to engage with the process.
Sobiah Hussain
Partner, Solicitor-Advocate, Collaborative Law Practitioner & Head of Private Family Law
Meet the teamPost Nuptial Agreements - Key Information
Post-nuptial agreements are not automatically binding in England and Wales – the court retains the power to overrule the agreement in some circumstances.
However, the Supreme Court confirmed in Radmacher v Granatino that a nuptial agreement is most likely to be upheld where both parties entered into it “of their own free will, without undue influence or pressure, and informed of its implications”.
The court is likely to give significant weight to an agreement where:
- Both parties entered into it freely, without pressure or undue influence
- Each party received independent legal advice
- Full and frank financial disclosure was provided by both parties
- The agreement does not leave either party, or any children, without their reasonable needs being met
If these safeguards are not met the court may attach less weight to it, or depart from it entirely.
The court is generally less likely to interfere with an agreement concerning the division of assets, and more likely to intervene to ensure that the reasonable financial needs of either party, or any children, are properly met.
No solicitor can guarantee that a post-nuptial agreement will be upheld in every circumstance. However, careful drafting and compliance with these safeguards can significantly increase the likelihood of the agreement being respected by the court if it is ever relied upon.
Independent legal advice is one of the most important safeguards when preparing a post nuptial agreement. It helps demonstrate that both parties understood the terms of the agreement and entered into it freely.
In most cases, each party should have their own solicitor. This allows both individuals to receive advice tailored to their own circumstances and helps reduce the risk of future arguments that the agreement was not properly understood or that undue pressure was applied.
Obtaining independent legal advice can therefore play an important role in maximising the weight a court may give to the agreement in the future.
Financial disclosure is usually a crucial part of the post nuptial agreement process. Before entering into the agreement, both parties should have a clear understanding of the other person’s financial position.
This will often involve providing information regarding assets, liabilities, income, savings, investments, pensions and business interests. Without adequate disclosure, there is a risk that the agreement may be challenged later on.
We can advise on the level of disclosure required and help ensure that the process is completed properly, reducing the risk of disputes in the future.
Where one or both parties own a business, a post nuptial agreement can provide important protection and certainty. Business interests can often become one of the most valuable assets within a marriage and may be difficult to divide in the event of a separation.
A post nuptial agreement can help clarify how business interests should be treated and may assist in protecting the long-term stability of the business. This can be particularly important where other family members, shareholders or employees are also affected by the success of the business.
Inheritance is one of the most common reasons couples enter into post nuptial agreements. A person may have received an inheritance during the marriage, expect to receive one in the future, or wish to protect assets that have remained within their family for generations.
A carefully drafted post nuptial agreement can help clarify how inherited assets should be treated if the relationship later breaks down. Whilst each case will depend on its own facts, obtaining advice at an early stage can help reduce uncertainty and minimise the risk of future disputes.
Whilst post nuptial agreements are often given significant weight by the courts, there are circumstances in which one party may seek to challenge the agreement following a separation or divorce.
Arguments can arise where it is alleged that important financial information was not disclosed, that one party did not properly understand the agreement, or that unfair pressure was applied during the process. In some cases, a party may also argue that the agreement no longer produces a fair outcome because circumstances have changed significantly since it was signed.
For this reason, careful preparation at the outset is essential. A properly drafted agreement, supported by appropriate disclosure and independent legal advice, is generally less vulnerable to challenge in the future.
Meet the Private Family Law Team
Sobiah Hussain
Partner, Solicitor-Advocate, Collaborative Law Practitioner & Head of Private Family Law
Irrum Shah
Senior Associate Solicitor
Alison Page
Senior Associate Solicitor
Emma Macdonald
Chartered Legal Executive
Frequently Asked Questions
The purpose of a post-nuptial agreement will be different depending upon the couple entering into it. However, some common reasons of using a postnuptial agreement include:
1. To protect assets acquired before (or during, e.g. inheritance) marriage.
2. To protect your assets from a partner’s debts.
3. To protect your children’s financial interests.
4. To protect the financial interests of children from previous relationships.
5. To agree how you will manage finances together.
6. To protect business or trust assets.
7. To provide peace of mind around the division of assets should the relationship break down.
A postnuptial agreement (sometimes called a ‘postnup’) is an agreement made by a couple after they enter into marriage or civil partnership. The legal agreement outlines the ownership of financial assets in the event of a separation or divorce.
Prenuptial and postnuptial agreements are contracts that are drawn up either before (prenup) or after (postnup) a couple gets married or enters into a civil union. Both agreements concern the ownership of financial assets in the event that the marriage should fail.
A prenuptial agreement is a contract entered into before marriage or civil partnership, whilst a postnuptial agreement is a contract entered into during marriage or partnership.
Postnuptial agreements are usually used for the same reasons as a prenuptial agreement. They protect wealth and assets of the people concerned.
The popular view of such agreements is that they ensure that someone doesn’t marry a wealthy person for their money. However, they are helpful in many other situations where wealth might not be the main concern. The aim of these types of agreements is to create a sense of certainty to what life will be like should a marriage or civil partnership breakdown.
The emotionally difficult time of a divorce or separation can make settlements during a divorce difficult. As such, agreements such as these ease any fears or worries the couple may have.
Other reasons to wanting a postnuptial agreement may include:
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- Recording the wishes of a couple in the event of a divorce to the assets already owned
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- Receiving an inheritance during the marriage
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- Another change in financial and asset circumstances during marriage.
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- The birth of a child.
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- Having children from a previous marriage (and thus ensuring their inheritance)
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- The start of a new company or business venture.
If there is concern around the strength of a prenup (such as it being signed just before a wedding), then it might be wise to sign a postnup to reaffirm and strengthen the prenuptial agreement.
There may also be situations where the circumstances relied on by the prenuptial agreement have changed. This could include a change of personal circumstances (e.g. career or children), or new assets in the marriage such as an inheritance. In such circumstances it might be wise to revisit the terms of the prenup and consider any changes.
We have seen clients who have experienced difficulties in their marriage who wish to use a postnuptial agreement to create a sense of peace around financial decisions should further issues arise.
Both postnuptial and prenuptial agreements work equally well at protecting the property and assets of individuals in marriage/civil partnership.
Occasionally it is ascertained that a prenuptial agreement may be seen as stronger, as the couple can be deemed as independently living adults whilst making the contract. It also can be said that postnuptial agreements are more difficult to make, as the couple’s assets become more intertwined (and thus difficult to separate) during the course of marriage or civil partnership. Postnuptial agreements have the benefit of taking into account new circumstances that occur during the marriage (new careers, children, inheritances etc), which may appear to the court as more relevant to the couple’s situation at the point of divorce.
That said, both agreements are equally valid as long as certain steps are taken to ensure that they are taken into account by the court.
You can make a postnuptial agreement anytime during a marriage or civil partnership. If you do not have a prenuptial agreement, then you may wish to make a postnuptial agreement with your spouse soon after entering into marriage.
Frequently we see couples approaching us to make a postnuptial agreement after a change in circumstances. That may be a career change, a new business venture, the birth of a child or an inheritance.
A postnuptial agreement is a bespoke contract drawn up for you and your spouse, so it can cover almost anything you wish it to. Typical inclusions in a post-nuptial agreement include:
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- How the couple will divide property and other financial assets in the event of their marriage ending.
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- Spousal support and for how long such support payments may continue post separation.
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- How any debts will be divided in the event of a divorce (including mortgages, credit card debt and other loans)
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- Provisions for children from previous relationships
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- Any other aspect of finances
The court has discretion on whether they uphold a prenup or post nuptial agreement. It is possible that the court may uphold part of the agreement whilst deciding another part to have an unfair effect on one or both parties. There are certain considerations that take importance over such agreements, such as the welfare of children in the marriage.
We advise that whilst post-nuptial agreements are not always binding, you should not enter into a post-nuptial agreement unless you wish to be bound by the terms of that agreement. You should fully understand the legal implications of making such an agreement, and should seek legal advice before entering into it.
Whilst it is possible to enter into such agreements without a solicitor, It is necessary with such agreements to demonstrate that both individuals enter into it with full (legal) understanding, and do so freely; i.e. without coercion.
It is highly recommended that both individuals entering into such agreements receive legal advice and representation. If one spouse does not receive legal advice, it could be argued that they did not understand the legal implications of signing such an agreement.
It depends on how you intend them to work. A postnuptial agreement details how a couple wish to separate their financial assets should the marriage or civil partnership fail. In this respect, a postnuptial agreement works by providing the court with a legal document to represent those wishes through the divorce proceedings.
However, such agreements are not fully legally binding and there is no requirement on the court to divide financial assets exactly as outlined in a postnuptial agreement. Although without such an agreement in place, more emphasis on negotiation and decision is placed on the divorce process.
The cost of a post nuptial agreement varies depending on the complexity of the agreement and how involved you require a solicitor to be. They are a bespoke contract between the parties which could range in cost between £1,000 and £10,000. The longer and more involved the process, and the more time required from your solicitor, the higher the cost will be.
If there is a chance that you and your partner have a child or children after the agreement, it is best to put a provision in the agreement in the case of these circumstances.
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