Can you sign a prenuptial agreement after marriage or civil partnership? Understanding postnuptial agreements

No. A prenuptial agreement cannot be signed after marriage or civil partnership. However, a similar agreement called a postnuptial agreement can be.

Whilst prenuptial agreements are signed before marriage (or civil partnership), postnuptial agreements can be entered into at any point during the marriage and serve a similar purpose.

Prenuptial vs. postnuptial agreements: what’s the difference?

Prenuptial agreement:

A prenuptial agreement is made by prospective spouses before marriage (ideally but not mandatorily at least 28 days before the marriage) and sets out how money and property will be dealt with in the event of divorce/dissolution.

Postnuptial agreement:

A postnuptial agreement can be made by spouses at any time during the marriage and addresses similar issues to a prenuptial agreement, dealing with how money and property should be dealt with if the relationship breaks down.

Whilst discussing a postnuptial agreement may not seem very romantic, particularly if you have only been married a short while, it can be a useful tool. A postnuptial agreement does not mean that you are considering separating or ending your marriage. There may be a variety of very good reasons why a postnuptial agreement could be beneficial for you.

Why consider a postnuptial agreement?

Although neither a prenuptial agreement nor a postnuptial agreement is strictly legally binding, case law tells us that, provided certain requirements are met, the courts will give them appropriate weight when deciding how money and property should be divided on divorce, provided it is deemed to be fair. A postnuptial agreement can therefore be beneficial in the following circumstances:

• You may have been unaware it was an option or simply not had time to enter into a prenuptial agreement prior to the marriage. A postnuptial agreement can be entered into after the marriage to clarify how you intend your money and assets to be divided on separation, particularly where one of you has greater capital or income. This can minimise the risk of arguments and provide more certainty of outcomes should the relationship break down. It can also help clarify financial responsibilities during the relationship, for peace of mind.
• Perhaps you entered into a prenuptial agreement prior to the marriage but, for whatever reason, it felt a little rushed and you were unable to sign the agreement more than 28 days before the marriage. A postnuptial agreement can be used to confirm the agreement set out in the prenuptial agreement and bolster it.
• You may need to review your prenuptial agreement and vary it using a postnuptial agreement.
• Your circumstances might have changed after the marriage. A postnuptial agreement can help to protect newly acquired wealth, an inheritance or a new business interest, for example.

The formalities

For a postnuptial agreement to be given appropriate weight by a court and for it to be considered fair, both parties should freely enter into it. Both must intend the agreement to determine the financial consequences on separation and fully understand the terms and their implications. It is important that both parties give full disclosure of their finances, to give each other the whole picture before entering into the agreement.

It is crucial for both parties to obtain independent legal advice before entering into a postnuptial agreement, to ensure you both fully understand the purpose and consequences of the agreement and to ensure it is drafted properly.

Obtaining a postnuptial agreement

To ensure that a postnuptial agreement protects your best interests in the long term, at Family Law Partners we can advise you about entering into a postnuptial agreement and can prepare the agreement based on our discussions with you, ensuring legal validity and fairness.

We offer the option of facilitating a postnuptial agreement using the collaborative model, which can be an ideal forum to ensure the discussions are transparent, open and focused, thereby avoiding any feelings of mistrust. We also offer the services of a relationship coach to manage the emotional challenge of negotiating such agreements.

How can we help?

Our team of family lawyers will be able to advise you on the most appropriate route to negotiating a postnuptial agreement.

Lauren Heathcote is a Senior Associate Solicitor at our Tunbridge Wells office.