Postnuptial Agreement Lawyers.

No. The court has always retained a broad discretion to determine the distribution of assets on divorce . In 2010, the English Supreme Court confirmed that:

“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.”

As such, there is a three-part test the courts use when considering a post-nuptial agreement:

• Was the agreement freely entered into? This means neither party should have been pressurised into signing the agreement. It is important both parties get independent legal advice on the agreement as evidence for this.
• Did the parties have a full appreciation of the implications of the agreement? Each party needs to know all material information about the financial circumstances of the other. Independent legal advice is often crucial and is again evidence in favour of a party fully understanding the implications of the agreement.
• Is the agreement fair in the circumstances? Further details on fairness are discussed below.
• There must be no evidence of fraud.

The Supreme Court has provided guidance on what constitutes fairness in a postnuptial agreement. If the court is satisfied this guidance has been followed, and the court could have reached the same agreement by following these principles, it is likely the agreement will be found to be fair.

Mostly importantly, it is unfair to fail to properly consider the needs of any children of the relationship. The court is also more likely to find an agreement is unfair the longer the marriage or civil partnership lasted following the signing of the agreement.

However, the court has confirmed it will respect the autonomy of adults entering into an agreement and there is nothing inherently unfair about protecting non-matrimonial assets.

Fairness is also to be considered based on three broad principles:

• Need – both parties’ housing and financial requirements need to be provided for.
• Compensation – the financially weaker party may be compensated if they have weakened their financial position by taking on responsibilities in the marriage or civil partnership. Often this will be the case if one party has taken time off from their career to take primary responsibility for children.
• Sharing – unless there is a good reason not to, the basic assumption is assets should be shared equally, on the basis a marriage or civil partnership is an equal partnership.

You do not need to be a solicitor to draft a postnup. Like a will, there are no set rules or formalities which need to be followed. However, also like a will, we do recommend that any postnuptial agreement is drafted by a lawyer.

This is because using a lawyer ensures your agreement does what you intend it to do. Family law is a technical and complex area, and post-nuptial agreements need to reflect the judgments of the court. There have been cases recently in which people have lost considerable portions of their wealth (up to 65%), which they believed they had protected, when a court ruled their agreement should not be upheld.

Whether your agreement is complex or straight-forward, we have the experience to provide first-class advice far cheaper than the cost of future litigation.

Without either a pre or postnuptial agreement in place, all the assets of both partners in the marriage or civil partnership can be categorised as matrimonial assets and can be included in the calculation of the financial settlement on divorce. As the starting point for the distribution of assets is they should be shared equally, assets owned prior to the marriage, or which came into one party’s sole ownership during the marriage, could be divided; depending on the circumstances, the final settlement could allocate more marital assets to one party than the other.

It is almost always easier, more amicable, and less expensive to agree the allocation of assets at a point before the marriage has broken down. Separation can be a stressful and painful time, and it can be difficult to agree what a fair and reasonable division of assets should be.

Anyone who does not already have an agreement in place setting out how they intend to distribute their assets in the event of a breakdown of their marriage or civil partnership would benefit from considering a postnuptial agreement. You do not need to be hugely wealthy or to have complex financial affairs; in fact, many people with moderate assets seek advice about a postnup for that very reason: it is important for them to secure significant property, items, or pots of cash.

Everyone’s circumstances are different, but a post-nuptial agreement could be worthwhile if one or both of you:

• Has property which they wish to protect and retain in their sole ownership
• Has or may inherit money, a business or property/land
• Has family who are interested in gifting money, a business or property/land which they would prefer to remain with their side of the family
• Has elderly parents who may need to be taken care of
• Owns a business or shares in a family company
• Is the beneficiary of a trust which is intended to benefit you specifically
• Has been married before and did not agree a clean break settlement
• Has children from a previous relationship whose interests they wish to protect

We have helped many people achieve greater security and peace of mind through a post-nuptial agreement. Speak to us today to see whether a postnup would be appropriate for you.

Sole ownership of property does not protect it from a claim as part of divorce proceedings. Each party to a marriage or civil partnership immediately becomes entitled to claim against the property of the other. A postnuptial agreement can limit the claims that the parties are entitled to bring.

A trust can attempt to control what happens to property, but it is only one measure. The terms of the trust do not override the discretion of the court to distribute property fairly on separation, so circumstances may require the money in the trust to be shared.

A postnuptial agreement complements the terms of a trust and adds further evidence that the property subject to the trust was intended by both parties to belong solely to one of them.

In the same way that a will should be redrafted if things change in your personal or financial circumstances, arrangements for a financial claim set out in a post-nuptial agreement should be reconsidered if something occurs which alters the circumstances which existed when the agreement was signed.

The court will always consider the length of time that has passed since the agreement was entered into, particularly if anything has changed in the circumstances of either party, so it is sensible to review the terms of a postnup periodically. We can advise you on the terms of your agreement and whether any changes are required.