Any married couple or registered civil partners can enter a post-nuptial agreement (post-nup) after their marriage.A post-nup documents how your finances and assets will be dealt with in the event of divorce (or dissolution of the civil partnership) and it might, for example, include an agreement to exclude inheritance assets, or state in which jurisdiction any divorce will proceed if one or both parties are foreign nationals. It is particularly important if you have already entered into a pre-nuptial agreement to enable it to be reviewed as necessary.
A post-nup can be made at any time during the marriage whilst a couple is still living together, and should be reviewed periodically to reflect changing circumstances.
Why should I consider a post-nup?
Post-nups aren’t just for the ultra-wealthy; if you own property or hold investments you might benefit.
Certainly if one person has substantially more assets than their spouse, they should consider a post-nup; as should couples who have a large disparity in income. And if you’ve been married before, a post-nup could be used to protect the inheritance rights of any children from your previous relationships.
Is a post-nuptial agreement enforceable?
Whether or not a post-nup is enforceable is at the discretion of the court. Generally speaking, as long as the conditions listed below are met, there shouldn’t be any problems:
- both parties take independent legal advice
- both parties provide full financial disclosure
- reasonable provision is made for current and future children
- there is no duress to enter the agreement
- the agreement is fair and is reviewed periodically
Considering a post-nup is a sensitive matter. We can help you broach the subject with your partner (who will need to take independent legal advice), and advise you on the issues to cover and help to negotiate the terms.
For more information on post-nuptial agreements and to start a conversation on how we can help you please contact Mark Rennie, Partner, Family.