Sometimes there is not enough time to consider a pre-nuptial agreement before getting married, and if that’s the case, there really is no need to panic because couples can still enter an agreement known as a post-nuptial agreement.

Also, some couples find that a post-nuptial agreement benefits them if they have separated for a period of time and then reconciled.

A separation agreement is also another type of post-nuptial agreement that comes into place for separated couples who are not yet read to divorce. Similar rules apply to a separation agreement as they do to the standard pre-nuptial and post-nuptial agreements when the couples are still together.

The legal rules about these agreements come from the usual laws that apply to divorce, and also a decision of the Supreme Court in a landmark case of Radmacher v Granatino in 2010 where the court said: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’

Everyone has their own reasons for entering into a post-nuptial agreement. The benefits to entering into a post-nuptial agreement are as follows;

1. One of you has substantially greater capital or income than the other;
2. One or both of you wishes to protect assets you owned prior to the marriage, including inheritances or family trusts;
3. 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;
4. One or both of you has children from a previous marriage or relationship and wishes to protect assets for the purposes of inheritance planning or
5. One or both of you has a connection with, or property in, another jurisdiction

Please note the list is not exhaustive and can also include simply peace of mind for the couple involved.

As with pre-nuptial agreements, post-nuptial agreements are not legally binding in England and Wales however the terms of the post-nuptial agreement may be decisive in the event that there is a dispute that needs to be determined by the Court.

Please remember that the Court are only in a position to assist where you and your spouse are unable to reach an agreement and would much rather you and your spouse agree on matters rather than them intervening. It is also commonly recognised that where the Court does intervene, a decision is usually made that is not what either party wished for so please do bear this in mind.

Properly negotiated post-nuptial agreements are more likely to be upheld by the Court on divorce than an ill-prepared and unfair agreement that has been put in place.

It is also necessary to have a post-nuptial agreement reviewed periodically to also accommodate any changes that may have occurred to the circumstances of the marriage, such as children being borne to the marriage, health issues affecting one’s capacity to earn and other matters that may affect the financial positions of the couple.

Here are some example considerations that a couple may want to think about to include within their agreement;

1. How would you deal with any property either of you brought into the marriage?
2. What would you want to happen to the family home?
3. How would you deal with any property given to you or inherited during the marriage, or any income or assets derived from trusts?
4. How you would divide any jointly or unilaterally saved money earned during the marriage?
5. What would happen to each your pensions?
6. How would debts be dealt with?
7. What kinds of events might require the agreement to be reviewed, such as having children etc?
8. Would you both wish the agreement to be confidential in that neither of you may disclose all of part of the agreement (save for the purpose of taking legal advice) to a third party or to the press?
9. What arrangements you wish to make if either of you should die during the marriage? Also you would need to consider whether you intend to enter into a Will to make provision for each other in the event of death?
10. Who will pay the costs regarding preparation of the agreement, will it be divided or will the costs be borne only by one of you?

There are any considerations that need to be carefully thought about and there are many advantages and disadvantages that need to be considered with regards to post-nuptials which are very similar to pre-nuptial agreements.

If you have any queries regarding the above and/or if you wish for us to run through the advantages and disadvantages of entering into a post-nuptial agreement, we would be more than happy to assist you. Please drop us an email at info@boselegal.co.uk or drop us a text or call on 07539 744144.