A post-nuptial agreement is a contract signed after a marriage, setting out what should happen in the event the marriage doesn’t work.
It is likely that you will have seen prenuptial agreements featuring in films or read about them in novels. And yet many people are unaware that you can have a postnuptial agreement or other forms of agreements after a relationship have begun or after it ends.
- Postnuptial agreements have increasingly been given more weight and consideration by the courts.
- The Supreme Court have recently said that, subject to certain requirements being met, pre-nuptial agreements should bind parties unless it would not be fair to uphold the agreement. The same approach is likely to apply to post-nuptial agreements
- Postnuptial agreements are likely to be upheld by the Courts as long as they are deemed to be fair and do not prejudice the reasonable requirements of any children of the marriage.
Different types of Postnuptial Agreements
There are a number of post-relationship agreements that our clients enter into:
- A postnuptial agreement is an agreement between parties who are in a marriage or civil partnership. The relationship may be very happy but the parties decide that they would like to organise their financial relationship with each other in the event that the relationship subsequently breaks down.
- A cohabitation agreement (sometimes called a ‘Living Together Agreement’) is available for people who have not married or entered into a civil partnership but nonetheless recognise, perhaps after years of living together, that their relationship would benefit from being clear about their respective capital interests and responsibility for living expenses.
- Declarations of Trust in respect of property holdings which can be stand alone or used alongside postnuptial agreements or cohabitation agreements.
Why should I consider a Postnuptial Agreement?
- For various reasons, you may have missed the opportunity to obtain a prenuptial agreement before the commencement of the marriage or civil partnership;
- When you want to protect pre-acquired assets or wealth;
- To manage the risks, costs and uncertainty of relationships breaking down;
- To minimise the risk of arguments in court if the relationship were to break down and reduce the potential for unpredictable outcomes;
- If you have been in a previous relationship or where there are children from previous relationships to consider;
- To meet the requirements of relatives or trustees of family trusts;
- You may have already obtained a pre-nuptial agreement but decide to have a postnuptial agreement (the ‘belt and braces’ approach) or to vary by agreement the terms of your earlier prenuptial (perhaps to address the birth of children);
- You would like to address a discrete issue that may arise, for example, how an investment in a business should be treated or what should happen to an inheritance.
- You want to identify the resources to be called upon if challenging issues arise in the relationship, for example, a referral to see a family therapist, or to attend mediation.
- For peace of mind.
A cohabitation agreement might be appropriate for you for all the same reasons listed above for postnuptial agreements. Additionally, the relevant law used to determine disputes between cohabitants in relation to the property they own, or an interest claimed in solely owned property, is complex and very expensive to litigate.
We prefer to facilitate post-relationship agreements using the collaborative law model if possible so there can be honest and open discussions, and likely agreements can be reality checked. The collaborative model can be an ideal forum to ensure the discussions are transparent, open and focused, thereby avoiding any feeling of mistrust. Our team of family specialists will advise you on the most appropriate route to negotiating a postnuptial agreement.
We will discuss with you whether you may benefit from the involvement of a family consultant to manage the emotional challenges of negotiating such agreements and ensure your hopefully happy and long-lasting relationship starts with strong emotional foundations.