A post-nuptial agreement is a contract entered into between a husband and wife during their marriage. This agreement differs from a pre-nuptial agreement, which is entered into before marriage.
Below are the highlights of the benefits of this type of agreement.
Like pre-nuptial agreements, post-nuptial agreements are not yet legally binding in England and Wales. However, they may be instrumental in the division of assets should a couple subsequently divorce.
There are several scenarios where a husband and wife might consider entering into a post-nuptial agreement.
The parties to a marriage are likely to feel vulnerable as to their respective financial positions following a separation and subsequent reconciliation. This sense of vulnerability may be heightened if one party has received a significant inheritance or City bonus. Those reconciling may wish to enter into an agreement setting out the division of the matrimonial assets should the reconciliation prove unsuccessful.
With it becoming increasingly difficult for young married couples to step on to the property ladder, one set of parents may wish to help fund the deposit for the couples’ first property. However, they may wish to ensure that their child retains that investment in case of a subsequent divorce. In such circumstances, especially in the case of a substantial investment, the parties’ might consider it appropriate to enter into a post-nuptial agreement.
Another scenario may involve the husband wishing to enter into a business venture which his wife perceives to carry a risk to herself and her children. The parties therefore may wish to enter into an agreement to minimise such a risk, as well as setting out how assets should be divided, should the husband’s venture prove successful. As with any agreement both parties require separate legal advice.
It is extremely important the agreement is entered into willingly and that neither party feels pressurised. In the 2006 case of ‘A’ v ‘A’ a post-nuptial agreement was found to be unenforceable because the wife successfully argued the she had been pressurised into signing the document. Sufficient time should therefore be given to the other party to respond to the proposed terms of agreement. Also, the circumstances surrounding the making of the agreement must be fully recorded in the preamble.
As with pre-nuptial agreements, each party should have full disclosure of the other parties’ income, assets and liabilities with supporting documentation.
It may also be relevant to consider including regular reviews of the post-nuptial agreement should either party’s financial or personal circumstances change.
The cost of preparing a post-nuptial agreement will vary depending on the complexity of each case.
Post-Nuptial Agreements
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