Posted by Liam Hicks, Trainee Solicitor
Post-Nup -“What if?”
A Postnuptial Agreement, as the name suggests, is a contract that is drawn up after marriage or when a couple have formed a civil partnership. The Agreement provides details on how the couple’s assets and property would be split in the event of the couple divorcing, separating or upon death. Postnuptial agreements enable you to agree the financial consequences of any future divorce, so that you and your partner can get on with your lives together.
Just like its better known brother, the pre-nuptial agreement, the post-nup lays out how a couple’s assets are distributed in the event of divorce or death. The key difference is that this new agreement can be reached at any time after the couple has tied the knot. As with pre-nups, whether this will cause more adverse emotional knots in the relationship is the age old question of “what if?” This question is perhaps elusive when a couple is in love. Acknowledging potential failure by instructing family solicitors to draft a contract isn’t exactly ‘Romeo and Juliet’.
Reality however can strike at any time, and the question avoided by loved up couples for many years will come back around, although this time, with significant assets in question.
The popularity of post-nup agreements is on the rise, especially with the cheated party in adultery cases. They feel it gives them back an element of control and power over their disloyal partner. Many who give their partner another chance rather than divorce can use a post-nup to rebalance the relationship. In essence, hitting them in the wallet should they stray again.
The use of a post-nup as a tool to keep marriages together shouldn’t be frowned upon by divorce lawyers. From early in careers, young lawyers are taught divorce should be a final option after other available avenues have been explored. The rise of the post-nup may serve as a last resort to prevent the irretrievable breakdown of a marriage and the inevitable divorce that follows.
Post-nups aren’t just for the Jay-Z, Beyoncé and the German heiresses of this world. Couples in the UK have been signing an ever increasing amount of these agreements. The proposal of a post-nup agreement may not always be one sided. Couples who earn on par with each other and women walking back into a high flying career after maternity leave may recognise that a post-nup provides security.
However, the post-nup can also be used as a pre cursor for divorce; wealthy individuals look to get away with paying less to their spouse, before the compulsory disclosure of their real wealth in financial divorce proceedings occurs.
Many couples also choose to have a postnuptial agreement when they are relocating to the UK and want to protect their assets. High net worth individuals often relocate with their families to London which has led to the UK to been known as the divorce capital of the world. English law has always had a favourable outlook for the non-wealth producing partner and in turn there have been large financial settlements being handed down by the courts. Wealthy individuals are turning to the post-nup to protect their assets and provide certainty in light of this.
Like pre-nups, post-nups aren’t legally binding but they do carry weight in British courts, 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 on the rise. These statistics have inevitably led to higher percentages of cohabiting couples, who are not married. The law in relation to such couples, as with large proportions of the legal profession, is lagging behind the needs of society. The lack of automatic protection for cohabiting couples can often lead to lengthy and costly disputes. No sharing of pension pots, less property rights, the list goes on…
To avoid nauseating battles through the court system, is there a way for unmarried couples to protect themselves in an amicable way? Why, the post-nup of course, or more accurately a variation; the cohabitation agreement. The agreement will record 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.
All in all, it doesn’t hurt to consider a post-nup agreement, for whichever reason as considered above. It may save a large amount of emotional stress and heartache down the line, as well as hefty legal expenses. The best case scenario is that you’ll never need it, but that shouldn’t stop you asking “What if?”
For more information, contact the Family team on:
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