Posted by Emma McMorrow, Senior Associate
Post-Nup -“What if?”
Just like the better known pre-nuptial agreement, a post-nuptial agreement sets out how a couple’s assets are to be distributed in the event of separation. The key difference is that this new agreement can be reached at any time after the couple have married or formed a civil partnership. As with pre-nuptial agreements, whether entering into such an arrangement will cause unnecessary emotional conflict is the age old question of “what if?”
The popularity of post-nuptial agreements is on the rise and the proposal may not always be one sided. Couples who earn on par with each other and are in a similar financial position may recognise the security provided by such an agreement. However, the post-nuptial agreement can also be used as a precursor to divorce and this is something that the party in a weaker financial position should be conscious of when considering whether or not to enter into such an arrangement.
Many couples also choose to have a post-nuptial agreement when they are relocating to the UK. Wealthy individuals who relocate to London with their families are aware that the city has come to be known as the divorce capital of the world. English law takes a balanced approach when considering the needs of a partner who has not been the main breadwinner as it recognises that contributions to the relationship and family life can be made in other ways. In light of this, certain wealthy individuals are turning to the post-nuptial agreement in an attempt to try and protect their assets.
Like pre-nuptial agreements, post-nuptial agreements are not legally binding in English courts but they do carry weight, providing they have been signed by both parties without duress and alongside impartial and independent legal advice. For unmarried couples however, as in most of Family Law, their rights are very different. Weddings in the UK are in decline, the singles demographic is on the rise, inevitably leading to higher percentages of cohabiting couples who are not married. The law in relation to such couples is lagging behind the needs of society and the lack of automatic protection for cohabiting couples can often lead to lengthy and costly disputes.
To avoid protracted litigation through the court system, unmarried couples can protect themselves via a cohabitation agreement. Such an agreement records the intentions of each party, coupled with a deed of trust (that sets out exactly who owns what in regards to property), which will help the court immensely when deciding a case.
If you are unsure about the consequences of a post-nuptial agreement or whether it would benefit you and your partner, taking professional advice at the time of separation can help take away some of the uncertainty. Contact our Family team on:
0800 923 2074 Email us
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