Postnuptial Agreements UK: How and why get one after marriage?

What is a Postnuptial Agreement?

A postnuptial agreement, or “postnup,” is a UK legal contract made after marriage to outline asset division, spousal support, and financial responsibilities if separation occurs. UK courts consider postnups legally binding if they are fair, offering clarity and security for both spouses.

Postnuptial agreements can be used when a couple has previously entered into a prenuptial agreement before marriage and wants to confirm that the choices they made still stand after getting married.

The aim of the postnup agreement is to keep individual assets separate rather than allowing them to become marital property within the ‘matrimonial pot’.

Thereby minimising the possibility of divorce-related financial disputes ending up at the mercy of divorce proceedings in court following a breakup.

It is strongly recommended that the agreement be reviewed and updated periodically, especially after the children are born, as the court will always consider the children’s needs such as child custody and support when deciding on a divorce settlement.

Are UK post-nuptial agreements legally binding?

In the UK, postnuptial agreements are not automatically legally binding; however, they are increasingly recognised by the courts, provided they meet specific criteria..

Courts in the UK have increasingly recognised the validity of postnuptial agreements, provided they meet specific criteria.

For instance, in the landmark case of MacLeod v MacLeod [2008], the court upheld the postnuptial agreement because it was entered into freely and met the necessary standards of fairness

The importance of legal advice was highlighted in the case of Radmacher v Granatino [2010], where the court emphasised that an agreement is more likely to be upheld if both parties were fully informed and advised. In the same case, a Judge ruled:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

What this essentially means is that:

• Each party should take independent legal advice before entering into a postnup and they should not feel under duress to sign.
• Both parties should understand the full extent of any financial claims they might be giving up by signing a postnup (eg any hidden wealth can reduce the effect of an agreement).
• There is an overriding duty of the court to ensure that the needs of both parties – in particular where children are involved – are met.

Hypothetical scenarios of why couples might consider a postnup

Scenario 1: Significant Inheritance

Sarah and Mark have been married for five years when Sarah receives a substantial inheritance from her late grandmother. Sarah wishes to ensure that this inheritance remains in her family and is not subject to division if she and Mark were to divorce.

How a Postnuptial Agreement Helps: a specific clause outlining that the inheritance will remain Sarah’s separate property can be drafted into the agreement. This clause protects the inheritance, ensuring it is not included in the marital assets subject to division upon divorce.

This agreement can also stipulate how any income or assets derived from the inheritance (such as interest or investment returns) will be treated.

Scenario 2: Second Marriage with Children from a Previous Marriage

John has recently married Emma, and it is a second marriage for both of them. John has two children from his previous marriage and wants to ensure that specific assets, including his house and a significant pension fund, are preserved for his children.

How a Postnuptial Agreement Helps: A postnuptial agreement can clearly define which assets are intended for John’s children and should not be divided in the event of a divorce.

This can include provisions ensuring that the house remains in John’s family and that the pension fund is designated for his children’s future. The agreement provides clarity and security for both parties, reducing potential conflicts.

Scenario 3: Business Ownership

Emily owns a successful business she started before marrying Tom. As the business grows, Emily becomes concerned about protecting her company in case of a divorce, particularly as Tom has no involvement in the business.

How a Postnuptial Agreement Helps: Emily and Tom can use a postnuptial agreement to protect the business. The agreement can specify that the business, its assets, and any profits generated are Emily’s separate property.

Additionally, the agreement can address how the business would be valued if it were ever included in a divorce settlement and stipulate that Tom will not have any claims to the business’s ownership or future profits.

Scenario 4: Change in Financial Circumstances

After several years of marriage, Lisa receives a significant promotion, resulting in a substantial increase in her income. At the same time, her husband, David, decides to leave his job to pursue further education. Both are concerned about how these changes will affect their financial dynamics.

How a Postnuptial Agreement Helps: Lisa and David can draft a postnuptial agreement that accounts for their new financial situation. This might include provisions on how Lisa’s increased income will be handled,  how the couple will manage finances while David is not working, and how future assets or debts will be divided.

This agreement can help manage expectations and provide security for both parties.

Scenario 5: Protecting Future Financial Interests

Rachel and Steve have been married for several years and are considering starting a family. Rachel has substantial savings and wants to ensure that, if she steps back from her career to raise their children, her financial interests are protected.

How a Postnuptial Agreement Helps: A postnuptial agreement can include provisions that protect Rachel’s savings and ensure she is fairly compensated if the couple divorces after she has reduced her work hours or stopped working altogether.

This might include terms for spousal maintenance, ensuring Rachel’s financial security while she is not earning an income.

What is the Difference Between Prenuptial and Postnuptial Agreements?

How do I create a postnuptial agreement?

Here is the exact process to obtain a post-nup agreement after marriage with our service:

1. Initial Discussion

First and foremost, it’s crucial for you and your spouse to have an open and honest conversation about why you’re considering a postnuptial agreement.

This isn’t always an easy discussion, but it’s important that both of you are on the same page regarding your financial goals and the reasons behind this decision. Whether it’s to protect assets, provide for children from a previous marriage, or address a change in financial circumstances, understanding each other’s perspectives is the key starting point.

2. Consultation with Independent Legal Advice

Each of you should have independent legal advice. This ensures that both parties fully understand the agreement’s implications and that it’s fair and balanced. As your solicitor, I would review your financial situation, discuss your objectives, and advise you on what should be included in the agreement.

Your spouse’s solicitor will do the same. Independent advice is crucial because it not only protects your interests but also strengthens the enforceability of the agreement in court.

3. Full Financial Disclosure

For the agreement to hold up in court, complete transparency is required. You and your spouse need to give full disclosure of your financial assets, liabilities, income, and expenses. This step is non-negotiable. You’ll need everything from bank statements and property valuations to any business interests.

The idea here is to lay all the cards on the table so that the agreement can be made with all the facts in front of you both.

4. Drafting the Agreement

Once we have all the necessary information, we’ll start drafting the agreement. This document will be tailored to your specific circumstances and future expectations.

It might include provisions on how assets will be divided, spousal maintenance, and the treatment of any inheritance or future income. During this stage, there may be some back-and-forth with your spouse’s solicitor to fine-tune the details, which is entirely normal.

5. Reviewing and Finalising the Agreement

After we’ve drafted the agreement, you and your spouse will need to review it carefully. I’ll walk you through each clause, explaining the implications and ensuring you’re comfortable with what’s been agreed upon.

If any changes are needed, we can make those adjustments before finalising. It’s important that both of you feel that the agreement is fair and that it protects your respective interests.

6. Signing the Agreement

Once everything is in order, both you and your spouse will sign the agreement, ideally in the presence of witnesses. This step formalises the agreement and makes it legally binding, provided it meets the necessary criteria.

It’s also a good idea to keep multiple copies—one with each of your solicitors and one for each of you, securely stored for future reference.

7. Periodic Review

Finally, it’s worth considering a periodic review of your postnuptial agreement, especially if there are significant changes in your circumstances—such as a change in income, the birth of children, or a major financial decision.

Keeping the agreement up-to-date ensures that the agreement remains relevant and continues to reflect your intentions.

View Our Postnuptial Agreement Service For £849

How much does it cost to create a postnuptial agreement?

The typical cost for a solicitor to draft a postnuptial agreement is around £800 to £2,000.

The cost of drafting a postnuptial agreement can vary widely depending on the complexity of your financial situation and the level of legal advice required.

This cost can increase to over £5,000 if the agreement involves complex assets or extensive negotiations are needed.

The legal fees associated with drafting a postnup should be viewed as an investment in protecting your financial future. The cost of going to court for a divorce is five to ten times more expensive, sometimes even more.

What clauses can I include in a postnuptial agreement?

Some of the common elements of postnups include:

• Matrimonial home – a couple may decide in advance who will be entitled to remain, or if the property should be sold if the marriage breaks down.
• Property portfolios and inheritances – note that inheritances or property owned before marriage are sometimes automatically kept out of the matrimonial pot.
• Maintenance – if one partner is in a stronger financial position, they may agree in advance to support the other party in the event of divorce.
• Savings, shares, and pensions – the full extent of these should be stated upfront.
• Business assets – particularly important if one party already has significant business interests before marriage.

Moving Forward

A post nuptial agreement can provide significant benefits to married couples. While not automatically legally binding, UK courts often uphold postnups if they meet certain criteria.

As a family law solicitor, I advise clients to seek independent legal advice to ensure their post-nuptial agreement is comprehensive, fair, and enforceable. This foresight can save considerable time, stress, and expense, providing both parties peace of mind.