A Post-Nuptial Agreement will determine what happens to your finances and your children if you separate or divorce. Although unromantic, it is a sensible thing to do and is especially important if one party to the marriage has more assets than the other.
A Post-Nuptial Agreement is drawn up after a couple is married. More people are considering this as an option after recent Supreme Court case law made Agreements more likely to be enforced. Such an Agreement would potentially remove the costs of litigation upon divorce and a couple whose relationship is in difficulty may especially consider that a Post-Nuptial Agreement is useful.
What to include in a Post Nuptial Agreement?
Post nuptial agreements typically include:
- Payments towards mortgage or rent and other household bills such as council tax
- Debts in joint and sole names and who is responsible for those debts, including those that have been amassed before cohabitation or marriage. Who will be responsible for those debts in the event of separation?
- Savings – joint or in sole name and how they will be distributed if you separate.
- Joint assets such as cars or furniture – who will keep them or will they be sold if you separate?
- How you own property, such as your home, in sole name, joint in equal shares or joint in unequal shares. What will happen to the home if you separate? Who will move out? If one of you moves out will you still pay towards the house?
- Joint bank accounts – will they be closed? Transferred?
- Life insurance in joint names or on each other.
- Nominated beneficiary under pensions.
- If you have children who they will live with and where and how you will each support them
- Mutual wills.
- Review clauses – for example when you have children;
- Inheritance and gifts from others – to be shared or kept apart?
The Post-Nuptial Agreement will focus on financial matters and will not include details of domestic life.
Are Post Nuptial Agreements Legally Enforceable?
Yes provided there has been full financial disclosure i.e you have not hidden any details about your financial circumstances so that you have both entered into the Post-Nuptial Agreement with a full knowledge of what you are agreeing to and there has been no coercion and it is not grossly unfair. The Post-Nuptial Agreement needs to be properly drafted as a legal contract.
Although not totally legally binding, Post Nuptial Agreements are regarded as one of the factors to be taken into account by a Judge when considering what orders to make. Recent case law has determined that they will carry more legal weight. Therefore, if both parties entered into the Post-Nuptial Agreement willingly and had the opportunity to take legal advice then the Court is urged to enforce the Post-Nuptial Agreement.
The English legal test for a post nuptial agreement.
“Did each party freely enter into an agreement, intending it to have legal effect and with a full appreciation of its implications? If so, in the circumstances as they now are, would it be fair to hold them to their agreement?”
Lady Hale Supreme Court Judgement -Radmacher v Granatimo 2010
For more information or to speak to our Post Nuptial Agreement solicitors about your circumstances, contact us today on 0845 680 6045 and a member of our team will be happy to assist you.