A post-nuptial agreement is a document, entered into freely and with legal advice, setting out financial matters on divorce and intended to be legally binding. It sets out in advance the agreed financial arrangements that will apply in the event of a future separation or divorce.
As the name suggests, it is signed after the wedding. So why do this during the marriage and not before? There are many scenarios where a post-nuptial agreement may be beneficial or desired.
- Inheritance or gifts. If one party to a marriage is aware of or likely to receive family wealth, that they or their family would prefer to protect, a post-nuptial agreement can deal with this. The agreement should encompass all aspects to be as comprehensive and binding as possible, but the emphasis could be on inherited wealth.
- Parties in or likely to be in financially disparate positions. If one party to a marriage is aware that they may become financially weaker (for example, moving locations for a spouse's employment and giving up their own career, or choosing to have children) a post-nuptial agreement may be sensible to ensure clarity should separation occur in the future.
- Infidelity. It has been reported in the press (for example in this Guardian article) that some spouses are turning to post-nuptial agreements as a condition to continuing their marriage following infidelity. Whilst it is unlikely that an English Court will ratify the use of post-nuptial agreements as "punishment", for the financially weaker spouse (perhaps the innocent party!) having a document setting out financial matters should the parties separate could be very reassuring.
- Financial certainty. A pre-nuptial agreement (prior to the marriage) is not the only way to obtain certainty, agreement and clarity/openness in relation to finances in a marriage. A post-nuptial agreement can be entered into by any married couple, or any couple in a civil partnership, interested in avoiding argument and tension should they separate.
It is important to remember that post-nuptial agreements should be fair to both parties and ensure that children are adequately provided for through their parents. If not, there is a risk that the agreement could be challenged at Court, and a different outcome to that prepared for could be imposed. Drafted correctly and fairly however, a post-nuptial agreement can be an important document for both parties to a marriage, whether required in future or not.