What Is A Postnup?

Categories: Agreements, Postnup

Postnups are similar to prenups but can be made after you are married


Just like a prenup, they’re designed to provide a financial plan should the marriage break down. Postnups can be used by couples who have already created a prenup to confirm that the arrangements from their prenup are still valid or indeed to change the prenup due to a change of circumstances.

Whilst the primary purpose is to set out what will happen to your finances / assets should the marriage break down, they can include anything you want them to. However there is one overriding factor that comes before anything else set out in the postnup and that’s children and the financial requirements to support them. If you create a postnup and then later on have children, you will need to revise the postnup as the court will not uphold any postnup where the needs of your children are not taken into account (or indeed where the postnup might be detrimental to your children).

Indeed it’s wise to review your ‘nup’ be it pre or post every 5 years. If it was initially a prenup and gets revised, it becomes a postnup.

Popular assets and financial elements in a postnup include:

The family home - in case of a breakdown, what happens to it? Does one side remain or is it sold?

Property acquired by either side prior to marriage.

Inheritance (although sometimes both inheritance and property acquired pre-marriage are excluded automatically from the marital pot).

Joint assets and how they’re dealt with

Debts (if a marriage breaks down and there’s no pre/postnup, debt may be shared in a settlement, even if one side has incurred it!)

Pensions

Maintenance - who should pay / receive and for what duration?

We’re now going to explore whether a postnup is legally binding….

Much like prenups, postnups aren’t automatically legally binding in England and Wales. However postnups are generally taken into account and there’s legal precedence from the Supreme Court case of Radmacher v Granatino surrounding enforcement with the following guidance:

“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.”

This highlights that:

● Independent legal advice is essential

● Both parties need to understand the full financial implications of signing a postnup

● The needs of both parties must be met. In the case of Radmacher v Grantino there were children involved and as explored previously, their needs were paramount in the decisions made.
Just like with prenups, £1500 is the cost of obtaining a postnup including legal representation for both sides through wenup. That’s significantly below the cost when including the legal representation for both sides using the traditional approach.

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