Partner Article

Post-nups – How They Work, Who Needs One – and What They Cost

By Sarah Dickinson, senior solicitor at Jones Myers

A postnuptial agreement can be drawn up at any time after marriage and is increasingly popular with older couples who may have been married before, and who might have dependent children or who have brought property or assets to the marriage. Below are my responses to frequently asked questions on post-nups.

How does a post-nup work?

For a post-nup agreement (PNA) to carry its full weight, both parties must enter into it of their own free will, without undue influence or pressure - and be informed of its implications. Legal advice and disclosure are desirable, but what matters is that both parties are fully aware of the implications of the PNA and have the information necessary to make an informed decision. It follows that duress, fraud or misrepresentations are potentially vitiating factors. The couple’s circumstances at the time of the agreement are also relevant. These include age and maturity and whether either or both had previously been married or in long-term relationships.

Why would you need a post-nup?

There may be problems in the marriage and although both parties wish to maintain the relationship, they feel that their finances need to be regularised in the event the marriage flounders.

Often, post - nups are drawn up by parties to a second marriage who want to protect the children of a previous relationship. Post-nups are sometimes drawn up by people who wanted a pre-nup but didn’t have time, or for some other reason felt it inappropriate, to arrange one prior to the marriage.

What issues/assets do you need to consider?

Any issue that might be considered and dealt with upon divorce should be addressed as part of a post-nup agreement, including arrangements for any children of the parties, income, property, pension, savings and investments.

Can you get a post-nup at any time?

A post nup, by definition, can only be entered into once a marriage has taken place, but there is no time limit thereafter regarding when it can be requested – it could be years later.

Are they legally binding?

Not as such, but they are increasingly being taken into account by the courts in the event of a dispute. Courts must consider whether there is an overarching fairness in applying the provisions of a PNA.

How much do they cost?

It depends upon the complexity of the family’s finances – but they are intended to ensure that costs incurred upon divorce are dramatically reduced by avoiding contested and protracted court proceedings.

It is extremely difficult to give a guide as it depends on so many different factors such as complexity of agreement, investigations which need to be undertaken in terms of what the assets are etc., and how many drafts and amendments to the agreement might be needed.

Are there any downsides?

Post-nups are not all encompassing as it can be difficult to plan for all possible outcomes. They are also far from romantic, and although both parties may agree to the post-nup, often it is led by one of them, or the family of one of them, which can cause tension and upset and may ultimately impact negatively upon the relationship.

Because the agreements are not legally binding, in the event of a dispute, the court can use its powers to vary a “post-nuptial settlement” by amending the original terms of the agreement or rendering them obsolete.

Why is there an increase in the number of older people getting post-nups?

I’m not sure there is, it may just be that there is an increased awareness of them, just as there appears to be an increase in the number of more mature people getting divorced. The number of older people entering a second marriage could be a factor, with the realisation that they need to protect the financial interests of their previous families.

This was posted in Bdaily's Members' News section by Jones Myers LLP .