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Postnuptial Agreement Lawyers

 

Most people have heard of pre-nuptial agreements due to their popularity among the rich and famous. In the same way a pre-nup safeguards the assets of each party by setting out exactly how the combined assets of the parties will be distributed in the event of a break-up, a post-nuptial agreement seeks to prevent some or all of each parties’ assets forming part of a financial claim on divorce.

Post-nuptial agreements are less common than pre-nups, but only because fewer people are aware of them. Just like pre-nuptial agreements, post-nups are part of a sensible financial planning strategy, especially if your circumstances change following your marriage.

We have helped people from all backgrounds secure their property and achieve greater peace of mind by advising them on a carefully drafted post-nuptial agreement. Talk to us to see if a post-nup is a sensible option in your circumstances.    

Who are post-nuptial agreements for?

Post-nuptial agreements are for anyone, especially if financial circumstances change following your marriage or civil partnership (one party receiving a large inheritance, for example). A post-nup is not just for wealthy individuals, or for couples on the brink of divorce. They are a sensible part of financial planning like making a will or taking out life insurance. 

What do post-nuptial agreements do?

A post-nuptial agreement sets out how the assets of each partner in a marriage or civil partnership will be distributed if the relationship breaks down and the parties separate. The terms of a post-nup can be as detailed or as general as the parties choose – there is no set format or rules concerning what the agreement must contain.

Like a will, a post-nuptial agreement acts to avoid or reduce doubt or complexity about the intentions of the parties to the agreement. Entering into an agreement like this limits exposure to legal proceedings following separation, as well as reducing the stress of determining the split of assets after the relationship has broken down. A post-nuptial agreement is like taking out insurance against litigation.

Is a post-nuptial agreement binding?

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.

What makes a post-nuptial agreement fair?

The Supreme Court has provided guidance on what constitutes fairness in a post-nuptial 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.

Does a post-nuptial agreement need to be drafted by a solicitor?

You do not need to be a solicitor to draft a post-nup. 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 post-nuptial 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.

What are the consequences of not having a post-nup?

Without either a pre- or post-nuptial 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.

In what circumstances are post-nuptial agreements useful?

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 post-nuptial 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 post-nup 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 post-nup would be appropriate for you.

Do we have to agree to split everything equally?

You can agree to divide your assets in whichever way you choose, but it is important to remember that, even if you have a post-nuptial agreement in place, a court can still revisit the agreed settlement and decide that it is not fair and reasonable.

The judgment of the court will always come down to what is fair in the circumstances. If you have only been in a civil partnership or married a short time, it may be considered fair and reasonable to retain a large portion of your personal assets; if you have had a long marriage or civil partnership, perhaps including having children, it is more likely that the division of assets should be more equal. In either case, it is sensible to make clear in your post-nup that both parties agree they are being properly and adequately provided for by the agreed distribution of assets.

Do I need a post-nuptial agreement to protect my own property?

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 post-nuptial agreement can limit the claims that the parties are entitled to bring.

Do I need a post-nuptial agreement to protect money in a trust?

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 post-nuptial 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.

What about shares in the family company? Are they protected by the shareholder agreement?

Not necessarily. The terms of a shareholder agreement will not stop a former partner making a successful claim for shares in the company if the court considers it is fair and reasonable in the circumstances.

Again, a post-nuptial agreement acts as additional evidence that the shares were not intended to be considered as matrimonial assets. 

Do I need a separate agreement to protect property overseas?

The English courts have confirmed they retain the authority to make decisions on matters relating to property owned overseas, even when the parties themselves have agreed that a foreign jurisdiction should govern their agreement. The Supreme Court has ruled that the English court is able to apply English law in such situations.

As such, it is arguably unnecessary to have different agreements to cover property overseas, or if one of the parties to the marriage or civil partnership is not a British citizen. As always though, the outcome will depend on the individual circumstances. We can advise on whether, in your situation, additional overseas agreements are sensible, taking advice, where necessary from a lawyer overseas.

What happens if my circumstances change after I sign a post-nuptial agreement?

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 post-nup periodically. We can advise you on the terms of your agreement and whether any changes are required.

Why choose Lanyon Bowdler?

Both Chambers UK and The Legal 500 have commented on our expertise with complex financial family law matters in their 2022 editions. We are proud of our reputation for providing the best advice. We are also proud of our reputation for providing the best client service available. Family law is complex and technical, but it also requires sensitivity and compassion. We take the time to really understand our clients and their needs.

This commitment extends to gaining a deeper understanding of the circumstances of the farming community and those serving in the Armed Forces. We see our signature of the Armed Forces Covenant and our appointment on the NFU Legal Panel as further evidence of our dedication to meeting our clients’ needs. No matter what your background or circumstances are, we will provide clear, practical, and honest advice to help you secure your future.

Contact The Family Law Team At Lanyon Bowdler

Lanyon Bowdler is a member of the Law Society Family Panel and accredited specialist with Resolution, a national organisation of family lawyers, so you can be sure our solicitors are experienced in all aspects of UK law.

Our divorce lawyers are approachable and professional, and will always adopt a balanced and practical approach to negotiations, minimising conflict and working to an acceptable outcome for you. Our aim is to achieve amicable resolutions swiftly, but if litigation is necessary we have the experience and know-how to deal with the courts effectively.

Please give us a call for a friendly, confidential, chat about how we can help support you when you or your family need legal advice and representation. Please contact a member of the team or complete our online enquiry form on the righthand side of this page.

By choosing Lanyon Bowdler for family law legal advice, you can rest assured that you have the best legal expertise on hand no matter what the situation. We are committed to providing exceptional levels of client care and will work closely and considerately with you to help find the best outcomes. Our Family Law Solicitors team has great experience in all areas of family law and family mediation.

We have offices in Shrewsbury, Bromyard, Conwy, Hereford, Ludlow, Oswestry and Telford, so are able to act for clients throughout Shropshire, Herefordshire, Mid and North Wales and across the Midlands (including Wolverhampton & Birmingham). As a leading full-service law firm, we are able to represent clients nationally, as well as overseas where applicable.

 

Testimonials

I was impressed with the efficiency and welcome of staff. Excellent office layout and service.  

- Mrs S James & Mr W Parkinson, Telford

A warm welcome from the receptionist. Extremely impressed by all that have helped us, peace of mind for our future.

- Mr M Court & Mrs A May, Shrewsbury

Always very efficient in dealing with the workload and advice given in divorce. Would highly recommend the service I received. 

- Mrs Suzanne Purvin

Knowledge and information given was accurate and realistic.

- Mrs Eleanor Margaret Howells, Hereford

Very efficient, pleasant and fully explained. I am well satisfied.

- Mr Stephen Turner, Oswestry

Friendly atmosphere and very professional attitude. 

- Mr Sidney Jolliffe, Oswestry

Advice was sensible and informative. It allowed me to make the decisions with understanding potential concequences. 

- Mr Paul Simon Burgoyne, Hereford

They listened to my worries and my concerns, which put me at ease and made me feel that I completely had someone in my corner fighting for myself and children's best interests. 

- Miss Deborah Lisa Bradley, Shrewsbury & Oswestry

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