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The number of couples entering into a post-nuptial agreement has risen considerably over the last decade. Like a pre-nuptial agreement, a post-nuptial agreement outlines the parties' intentions in the event of their marriage or civil partnership breaking down but is entered into after the marriage or civil partnership has taken place.
Post-nuptial agreements, or post-nups, can cover any financial arrangements the parties wish them to. These might include:
Post-nups are most frequently made shortly after a couple marries, but should be regularly reviewed and, if appropriate, amended in response to significant changes to a couple's circumstances. For instance, couples moving to the UK from abroad may also wish to enter into a post-nup to mitigate against English law determining division of assets in the event of divorce when such division does not match their agreed intentions.
Similarly, a post-nup can address the reduced earning potential of a spouse who interrupts their career to care for their children and reflect their contribution to the success of the main wage earner of the household. Parties who have separated and are attempting reconciliation may also wish to consider entering a post-nup as part of that process. This can offer some form of protection if the marriage starts to deteriorate again.
Post-nups are not technically legally binding but the 2008 Privy Council judgment in Macleod v Macleod set the legal precedent that arrangements set out in post-nups should not be varied by the court unless there are compelling reasons to do so. In 2010, the husband of German heiress Katrin Radmacher argued that their pre-nuptial agreement stating that he had no claim on his wife's fortune, should be waived. However, the Court of Appeal ruled in Ms Radmacher's favour, upholding the terms of the pre-nuptial agreement. It therefore follows that courts should hold parties to arrangements in post-nups so long as those arrangements are deemed fair in law.
The fairness of a post-nup may be challenged in the event that either party was pressured into signing the agreement, full and frank disclosure regarding assets has not been made, one or both parties have not received independent legal advice prior to signing the agreement, or there have been significant changes to the family or financial situation. Courts will not uphold the terms of an agreement that causes detriment to the children of the family or does not consider their needs.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles