Postnuptial Agreements

What is a Postnuptial Agreement?

A Postnuptial agreement is a contract that is drawn up after a couple gets married, or enters into a civil partnership. The agreement is a written contract providing details on how the assets and property will be split if the relationship ends in separation or divorce. It can also set out arrangements for the children from the relationship. The main benefit of a postnuptial agreement, of course, is to protect you and your spouse from expensive court proceedings in the future.

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Are Post-Nuptial Agreements Legally Binding?

The Post-Nuptial Agreement is a relatively new concept in the UK. Although they are not automatically enforceable in the UK, the Supreme Court has given recognition to postnuptial agreements and the Law Commission has recommended new legislation. In many cases they now influence the outcome of divorce settlements and can offer a good deal of protection.

In the case of MacLeod v MacLeod in 2008, the court held that if both parties, entering into a post-nuptial agreement, have obtained independent legal advice and have given full financial disclosure, the mere fact that the agreement is not what a court would have ordered, is not enough to set the agreement aside. This means that post-nuptial agreements, when properly executed, can be legally binding. However, the Supreme Court in Radmacher (Pre-nuptial agreement) clarified the situation even further and whilst the courts will infer that parties entering post-nuptial agreements intend them to be binding, the court will still refuse to uphold the agreements, if the particular circumstances make it unfair to do so.

How do you make your Postnuptial Agreement more "persuasive"?

The best advice we can give to people considering marriage or a civil partnership is to enter into both a pre and post-nuptial agreement, as was the situation in the MacLeod case. You should discuss it in depth with your spouse or partner and then approach separate solicitors who can advise you on whether your agreement is fair, so making it more likely to stand up in court. They can then draw up the final agreement on your behalf. The agreement should take into account the following points:

  • Any assets you may have and how they will be divided
  • Any debts you may have and how they will be paid
  • Present and future income
  • Pensions and how they will be distributed
  • Expectations of any gifts and/or inheritances
  • How any property will be split, this would include second homes etc.
  • A list of personally and jointly owned belongings and how they would be split.
  • Will any maintenance payments be made to either partner?
  • Insurance coverage including, life, medical and disability
  • Arrangements for children - residency, contact and financial support
  • What will be covered in your Will in the event of your death?

Once the Post-Nuptial Agreement is in place you can still change and update the terms of the agreement as your changing circumstances dictate. In fact this is seen as being a very positive action by the courts as long as it is being done fairly and reasonably.

What steps should I take now?

It is important for both you and your spouse or partner to obtain independent legal advice from a solicitor, to help draw up your post-nuptial agreement. Normally you will both need to instruct different firms of solicitors to avoid any conflict of interest. We are here to give you initial advice and then we can help you draw up a postnuptial agreement, both you and your partner are happy with. We usually provide this service on a Fixed Fee basis, so call us now to discuss how we can help you.

If you would like advice about Postnuptial Agreements call us now.