Post-nuptial agreement; how they work and what the law says

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An increasing number of couples are taking out post-nuptial agreements (‘post-nups’) – a legal agreement drawn up after you marry. But what exactly is a post-nuptial agreement and why would you have one?

Post-nuptial agreement: the basics

A post-nuptial agreement (or post civil partnership agreement) sets out how money, property and/or assets that you own would be divided if you were to split up.

  • It can be useful if you’ve been married before. Particularly if you have children from a previous relationship or marriage.
  • It 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.

SAVVY TIP: It was a case (McLeod v McLeod) before the Privy Council on the Isle of Man in 2008 that decided that post-nups are enforceable in England and Wales. It means they carry the same legal weight as maintenance agreements.

Post-nups in Scotland

Post-nups are legally enforceable in Scotland. They are generally taken out when someone wants to protect an inheritance. Rachael Kelsey, a lawyer with SKO Family Law in Scotland explains. “Under Scottish law, if you inherit a painting, it isn’t counted as a ‘matrimonial asset’ – so it doesn’t go into the pot to be divided at divorce – but if you sell the painting to buy another one, it is.”

Post-nups – good or bad idea?

Opinion is divided as to whether or not a post-nup is a good idea. Some divorce lawyers say they bring clarity. Others warn that as there’s no ‘sanction’ for not signing one (because you’re already married), you should not sign an agreement if you’re asked to…

Divorce lawyers say that, currently, post-nups are often taken out by:

  • Couples who already have a pre-nup who want to convert it into a legally binding agreement.
  • Couples who may be contemplating a break-up (perhaps they have split up and got back together again).

SAVVY TIP: Although post-nups are more popular among the wealthy, you don’t have to be fabulously rich to have one. However, they can cost several thousand pounds to draw up.

  • A number of divorce lawyers believe that post-nups can be bad news for women as they may limit what you might get at divorce. The worry is that the financially ‘weaker’ person (often, but not always, the wife) could lose out.

SAVVY TIP: Resolution, which represents divorce lawyers in England and Wales, has campaigned for post and pre-nuptial agreements to be legally enforceable (unless they leave one partner at a serious disadvantage). They argue that couples have more certainty about how assets would be divided.

Making your post-nup legally binding

Although post-nups are legally binding, it doesn’t mean all agreements will stand up in court. You should:

1. Have full and frank financial disclosure. This means you each need to tell the other how much money and property you have and the amount you owe.

SAVVY TIP: You wouldn’t be expected to bring a pile of bank statements with you, but you would have to produce a summary of what you own and any outstanding debts.

2. You should each take independent legal advice. That means you can’t use the same solicitor.

SAVVY TIP: If you don’t take independent legal advice, your post-nup should include a statement saying that it was recommended but you chose not to take it.

3. The post-nup should not be manifestly unfair to one party.

4. A post-nup cannot exclude financial support for children. It cannot be drawn up in such a way that you can walk away from your financial responsibilities for your children. If it is, it may be changed by the courts.

SAVVY TIP: It is possible that a post-nup could effectively put a limit on how much money is available to pay for a home for the parent who has the main responsibility for the children.

5. The post-nup should be reviewed regularly. If your circumstances change, perhaps because you have children, your post-nup should reflect that.

SAVVY TIP: Even if you haven’t had children, it’s still worth reviewing your post-nup, according to Nigel Shepherd, a spokesman for Resolution: “Your agreement should say that it will be reviewed every few years. If you change a pre nuptial agreement after you get married, it becomes a post-nup, which means it’s legally enforceable.” The website has a guide to pre and post-nups.

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