What’s the Difference Between a Prenup and Postnup?
The main difference between a prenuptial agreement and a postnuptial agreement is that you can only get a prenup before you are legally married, but you can get a postnup any time after getting married.
Most couples think they’ll never split up, but sadly 44% of marriages do end in divorce.
So if you and your partner regret not thinking about getting a prenuptial agreement before getting married, a postnuptial agreement might work for you.
Having a well-drafted postnuptial agreement can make a huge difference if you and your partner ever divorce. Our Divorce Solicitors can give you expert legal advice on pre and postnuptial agreements and help you draw up an agreement that meets your needs.
Still unsure if you need a postnuptial agreement or not? Here is everything you need to know:
What is a Postnuptial Agreement?
A postnuptial agreement outlines what you and your partner want to happen to your money and property if your marriage or civil partnership were to end.
You might want to consider getting a postnuptial agreement for a number of reasons, but the most common are:
- You didn’t enter into a prenuptial agreement before getting married
- You and your partner separated, but have now reconciled your relationship
Do I Need a Postnuptial Agreement?
A postnuptial agreement might be beneficial if:
- One of you has substantially greater capital or income than the other
- One or both of you want to protect assets that you owned before marriage, including inheritances or Family Trusts
Are Postnuptial Agreements Legally Binding?
Postnuptial agreements are not strictly legally binding. But the terms of your post-nuptial agreement may be the deciding factor if your divorce finances go to Court.
Most of the time, the Court will stick to the terms of your postnuptial agreement unless the effect of the agreement would be unfair. For example, if sticking to the terms of the agreement means one of you won’t be able to meet your house or living costs.
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. Lady Hale Supreme Court Ruling, Radmacher v Granatino 2010
Does a Postnuptial Agreement Hold Up in Court?
A postnuptial agreement will be more likely to be binding and hold up in Court if:
- Both you and your partner get independent legal advice before entering into it
- You provide full financial disclosure
- The terms of agreement are substantially fair
- There was no undue influence or duress into entering into the agreement, g. one of you pressuring the other into the agreement
- There was no fraud or misrepresentation by either of you in relation to the agreement,g. hiding away some of your assets
- Legal contractual requirements were followed when the agreement was entered into
What Can a Postnuptial Agreement Include?
A postnuptial agreement will change depending on your specific circumstances and can include things such as what will happen to:
- Property from before you were married or that you jointly own
- Any property given to you or inherited during the marriage
- Any personal belongings or possessions
- Your pensions
- Any debts you may have at the time of your divorce and how they will be handled
Can I Update My Postnuptial Agreement?
When drawing up the first draft of your prenup or postnup, you can include a ‘review clause’. This is where you build in provision for the agreement to be reviewed, either after a certain period of time or when a specified ‘trigger’ event occurs, for example the birth of a child.
Can a Postnuptial Agreement Protect International Assets?
If either of you has connections with another country, such as assets or future plans to move abroad, you should speak to a specialist Family Lawyer in that country. They can advise you on the need for and effect of a postnuptial agreement in their country.
You could also include a ‘jurisdiction clause’, which will set out the jurisdiction that you want to get a divorce or dissolution of your marriage in, and where you would like the agreement to be enforced.
Advantages and Disadvantages of a Postnuptial Agreement
The advantages of getting a postnuptial agreement are that it can:
- Give you more certainty about what your financial arrangements will look like if you get a divorce
- Be an effective way to protect your assets
- Protect you if your partner changes their mind – for example, if one of you doesn’t want to uphold the agreement when the time comes, the Court could make a Court Order reflecting the terms of the agreement and so making it legally binding, as long as it considers the terms of the agreement to be ‘fair’
The disadvantages of a postnuptial agreement are:
- It can sometimes provide a false sense of security as the agreement may not be upheld
- Circumstances can change and what may have been fair at the time of the agreement, might not be considered fair if your partner’s situation and yours have changed significantly
- Regular reviews of the agreement could cost time and money
How Much Does a Prenuptial Agreement Cost?
This will depend on who drafts your prenup and how many terms you want to include. For example, if you have more assets and a complicated financial situation, then it may take longer to draw up. And it could cost you each time you review the document.
Our Family Law and Divorce Solicitors will always be upfront about costs. We are the Open Lawyers, which means being honest and transparent when it comes to fees and all the work we do.
We have years of experience in helping couples with their pre and postnuptial agreements and we will tailor our expert service to your needs.
For initial legal advice call our Family Law and Divorce Solicitors
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