Post-Nuptial Agreements Explained

A post-nuptial agreement can be created to outline what should happen to a person's children, finances and assets if they separate or divorce from their spouse. A post-nuptial document can be incredibly valuable to the protection of individuals, particularly if one person in a couple has more assets than the other.

The post-nuptial agreement is created after the couple is married, and many more people now recognise the value of this document. Although the court is not legally obliged to enforce the contents of a post-nuptial agreement in all instances, such documents are becoming more widely acknowledged in divorce cases. One of the clear benefits of creating this type of document is that it enhances the potential to avoid litigation in the event of a separation or divorce, as the agreement will outline the foreplanning of the couple before the relationship issues arising.

The following article explains post-nuptial agreements in more depth, detailing what they can include and whether they are enforceable.

What should be included in a post-nuptial agreement?

Post-nuptial agreements can be lengthy and thorough documents or more succinct depending upon the needs and risks identified by each couple. Some of the most common inclusions in a legally binding document of this nature include:

• Household costs such as mortgage or rent payments and financial commitments such as council tax and utility bills
• Who is responsible for which debts, including those that were arranged before the marriage and who will be responsible for the debts in the event of a separation or divorce.
• How will savings and investments be divided in the event of a separation or divorce
• Who will own which assets or whether they should be sold if the couple separates
• Whether joint bank accounts will be transferred to one name or whether they will be closed.
• Whether life insurance policies need to be revised
• Who will any children the couple have live with and where their main residence will be
• What will happen to any mutual or mirror wills
• Whether pension beneficiaries will change
• The inclusion of any review clauses, such as if the couple have children at a later date.

There is no requirement for the post-nuptial agreement to make reference to any domestic elements of a couple's life, and instead, should focus on financial matters only.

Are Post-Nuptial Agreements Legally Enforceable?

Post-nuptial agreements are legally enforceable as long as there has been a full financial disclosure from both people. This means that if any assets or financial considerations have been omitted or hidden, the post-nuptial agreement will be void and not legally recognised. This is because the document will be considered as a dishonest representation of the financial standing of the couple, and if information has been hidden, the other party will be agreeing on an unsound basis. To ensure that the document is legally binding, a solicitor should be instructed to support the couple and ensure that the agreement is drafted correctly.

Despite post-nuptial agreements not being entirely legally binding, they are considered thoroughly by a Judge when orders are made in divorce cases. In recent cases, post-nuptial agreements have carried more weight legally, and so if both parties draft and agree to the document willingly and the agreement is thorough and honest, it is likely to be recognised and enforced by a court.