Post-nuptial agreements – pessimistic, or just plain practical?
“What if it all goes wrong?” isn’t something you think about when you’re in love. But while it might be all moonlight and roses now, what happens if things get rocky after you both say “I do”, or decide to move in together?
Hollywood (where else?!) has already embraced the ‘post-nup’, with reports suggesting that Beyonce and Jay-Z recently drafted one in a bid to get their marriage back on track following his alleged infidelities. But according to the Office of National Statistics, over a third of married people admitted that they would consider entering into a post-nuptial agreement. And when you consider that you take out insurance against your house burning down or flooding, why wouldn’t you look to protect your money, property and assets if you were to split up, too?
What is a post-nuptial agreement?
Like pre-nups, post-nuptial agreements are contracts that divide up assets and responsibilities. The only difference is, they’re signed after the wedding - in some cases, many years later. In the case of civil partnerships, they are sometimes referred to as post-civil partnership agreements or ‘post-cips’.
When is it particularly useful to draw up a post-nuptial agreement?
Postnuptial agreements are most commonly entered into when a couple has separated and recently reconciled, thereby giving both peace of mind should they split again, so that the parties can focus on the marriage without worry about financial matters.
The agreement doesn’t have to cover everything you own, it can be limited to cover a business that you’ve built up before you got married or property that one of you has inherited. It could also detail how the parties arrange their finances during the marriage.
What are the benefits?
Drawing up a postnuptial can also help to reduce legal fees in the event of a divorce as the issues for the court will be clearer and narrower. With the average cost of financial proceedings through the courts now being around £13,100 - and this is in small asset cases - it could substantially help to reduce the costs of the process.
Are they legally binding?
While post-nups are not currently legally binding, they can be more likely to be considered by a court than prenuptial agreements because there is no looming wedding date putting pressure on the couple to sign up. In the event of a divorce, the agreement is taken into consideration by the courts, amongst other factors.
In 2010, the Supreme Court set out the following basic requirements for an agreement to be taken into account by the court; there should be financial disclosure between the parties, ideally full and frank disclosure of each party’s circumstances; the agreement must have been freely entered into by the parties; and the terms of the agreement on the face of it should be fair.
Each party should also have obtained independent legal advice before signing the agreement to ensure that they have fully appreciated the implications of the agreement. Furthermore, a person’s emotional state at the time of the making of the agreement is a relevant consideration, along with other factors such as the maturity and age of the parties and their previous experience of long term relationships. In the case of a pre-nuptial agreement, the court can also consider whether the marriage would have gone ahead without the agreement being put into place.
Till death us do part?
No matter how well you know someone, and whether you think you'll be together forever, it's vital that you both discuss what happens if that's not the case. Best case, you'll never need it. Worse case, it'll save a lot of stress, heartache - and expensive legal fees - if you do. If you’re taking your relationship to the next level and would like to know more about post-nuptial agreements, contact the Family Law team at FDR, on 01928 739300 to find out how we can help