When planning for marriage, one topic that often arises is the possibility of setting up a prenuptial agreement. However, what happens if you are already married, can you enter into a Prenup after your legal marriage ceremony ?
Understanding Postnuptial Agreements
In England and Wales, once you are married, you cannot create a prenuptial agreement. However, this doesn’t mean you are left without options. Couples can instead consider a Postnuptial Agreement. This is similar to a prenuptial agreement but is created after the marriage has taken place.
What is a Postnuptial Agreement?
A postnuptial agreement is a written agreement made by a couple after they get married. It outlines how their assets, property, and finances will be divided if they divorce. It can cover various aspects such as property, savings, pensions, and debts; essentially everything that a Prenup would cover.
Legal Status in England and Wales
In England and Wales, postnuptial agreements are not automatically legally binding, as is the case with prenuptial agreements. However, the courts are increasingly likely to respect them, provided they meet certain criteria:
Voluntary Agreement: Both parties must enter into the agreement voluntarily and without pressure.
Full Financial Disclosure: There must be full and frank disclosure of each party’s financial situation. This must be worldwide.
Legal Advice: Both parties should have independent legal advice to ensure they understand the agreement.
Fairness: The agreement must be fair and consider any changes in circumstances, particularly when children are involved. Review clauses are usually necessary and required.
No timing requirement – A prenuptial agreement must be entered into at least 21 days prior to the wedding – plainly that isn`t the case with a post nuptial agreement.
Why Consider a Postnuptial Agreement?
There are various reasons why a couple might consider a postnuptial agreement. These include changes in financial circumstances, inheritance, a change in career, or having children. Such agreements can provide clarity and peace of mind for both parties.
The Process
To create a postnuptial agreement, it is advisable to follow these steps:
Discussion: Have an open discussion with your partner about why you think a postnuptial agreement is necessary.
Legal Advice: Each partner should seek independent legal advice to understand their rights and obligations.
Disclosure: Fully disclose your financial situation to each other.
Drafting the Agreement: The agreement should be drafted by a legal professional.
Signing the Agreement: Once the agreement is drafted, both parties should sign it in the presence of a witness, as a Deed.
Enforceability and Challenges
Postnuptial agreements may not always be enforced by courts in England and Wales. It depends on if they are considered fair and if both parties agreed to them willingly and without pressure.
Courts will closely examine these agreements if required to. This is particularly true if there are significant changes in circumstances. They will also pay close attention if the needs of the children are not fully addressed.
If your Spouse is suggesting you should enter into a postnuptial agreement and you have been married for some time, or there have been problems in your relationship, then careful consideration should be given to the purpose of the Postnup and why it is being sought by your Spouse. It may simply not be fair.
Conclusion
While a traditional prenuptial agreement isn’t an option after marriage in England and Wales, a postnuptial agreement serves as a valuable alternative. It is a practical step for those seeking to manage their financial affairs and protect assets in a marriage.
However, it’s essential to ensure that these agreements are drafted correctly and fairly to increase the likelihood that they will be upheld by the courts.
In short, couples considering a postnuptial agreement should seek advice from an expert Family Law Solciitor. This will ensure that their agreement is legally compliant and accurately reflects their wishes and circumstances.