Often the practicalities and sheer joy at moving forward in life when planning a wedding detract from the legal considerations. These considerations can often have significant, long- term implications – which should ideally be an additional focus, particularly where there is any degree of wealth as between the parties and in the wider family estates.
Often, newlyweds will only give consideration to such matters after their Wedding and when they embark upon the process of making ‘life admin’ adjustments – for example to reflect a change of surname.
What is a Postnuptial Agreement?
A Postnuptial Agreement is essentially a contract entered into by a married couple after their wedding which directs how they agree their assets, debts, and other financial matters will be divided in the event of separation, divorce, or death. They can be a useful tool in clarifying the financial position, protecting assets, and fostering transparency between parties from an early point in their marriage.
They are similar in style and purpose to a Prenuptial agreement. However, Postnuptial Agreements are signed after the marriage, perhaps to address changes in circumstances or reaffirm existing agreements.
Why enter into a Postnuptial Agreement?
Parties who have married may want certainty about their financial security going forward, if things go wrong and they end up getting a Divorce. They may want to protect assets they each brought into the marriage and agree a mechanism for sharing anything acquired jointly. Parties will be keen to ensure that they are each provided for in the event that they Divorce.
A Postnuptial Agreement can be more flexible in certain situations, as it allows couples to adjust any agreement after their wedding and during the course of the marriage. It can address issues that may not have been considered in any Prenuptial Agreement or provide for/make changes in response to changing life circumstances.
Identifying potential client needs for Postnuptial Agreements
- Couples who are married (whether this is recently or not) and may need to take steps to protect unequal investments and contributions
- Couples who had a Cohabitation Agreement whilst cohabiting – perhaps cohabiting in a property owned (and funded) solely by one party for many years prior to the relationship/ marriage;
- Couples keen to ensure any jointly acquired assets are shared whilst protecting pre-owned assets in their sole names, particularly those which are never “mingled” or “matrimonialised”;
- Couples wanting to safeguard where there is a gift or “early inheritance” from one party’s family towards their assets which it is agreed should be ringfenced; and
- Couples/ families seeking to protect wider Family assets and estates from claims upon Divorce.
- Couples who need to consider future financial planning in the event of a marriage breakdown
- Those looking to ensure children from current relationships do not “miss out” where their intended spouse has children from other relationships
- Those looking to protect with business interests and / or wider family wealth
What might a Postnuptial Agreement cover?
They can be used in an effort to protect assets, reaffirm prenuptial agreements, or address unforeseen circumstances like inheritances or career changes.
They can cover a wide range of issues, including property division, spousal maintenance, and even pet ownership.
While Postnuptial Agreements can cover aspects of child support and arrangements for children, courts ultimately decide these matters in the best interest of the child.
A Postnuptial Agreement cantinclude agreed arrangements for the responsibilities at the outset and during the marriage, i.e. financial responsibilities – who will contribute what to the outgoings including the mortgage, household outgoings and expenses, child care costs, etc. However, The primary content of a Postnuptial Agreement will usually include the following:-
- directions about how any shared property is owned, managed, and divided upon Divorce, including bank accounts, debts, and household bills;
- intentions regarding financial support for one spouse if the marriage ends or one spouse becomes ill and unable to work or contribute, and how enhanced contributions impact on the parties’ shares;
- confirm who is to be responsible for any debts accrued, both jointly or individually;
- what is to happen to pensions, i.e. how they are to be shared if there is a disparity and how this is to be calculated;
- confirmation of arrangements for the children of the marriage, both during the relationship and if the parties separate or Divorce; and
- confirmation about how any children will be supported if the relationship breaks down.
Legal Status – are Postnuptial Agreements enforceable?
If a couple remain happily married, the validity of a Postnuptial Agreement may never be an issue. But what if they don’t?
All clients would require detailed and specific advice tailored to their individual needs, but here follows a summary of the legal status of Nuptial Agreements.
Before considering whether to enter into a Postnuptial Agreement, a couple will want to know whether it is worthwhile and how they can ensure the Postnuptial Agreement is followed if their relationship does break down.
If the relationship breaks down and the parties Divorce, it may be the case that both parties remain content to resolve the financial aspects of their Divorce in the manner outlined in the Postnuptial Agreement. However, sometimes a relationship will break down many years after the Postnuptial Agreement was signed. One or both of the parties may consider that the Postnuptial Agreement no longer provides for a fair and appropriate outcome – for example. if circumstances have changed and/ or they believe that the circumstances in which the Agreement was made were not appropriate.
Where parties are in dispute and cannot reach an agreement regarding the financial aspects of their Divorce, the Court is likely to be asked to determine the appropriate financial outcome within ‘Financial Remedy proceedings’ linked to the Divorce.
No agreement between parties can override the Court’s jurisdiction to decide on the appropriate division of assets on a Divorce, which means that a Postnuptial Agreement cannot stop one party applying to the Court for financial provision from the other.
The Court would determine the appropriate outcome during a Court process involving full disclosure of assets, ongoing efforts at negotiation and a sequence of Court Hearings before the Court ultimately makes the final decision regarding the appropriate financial outcome.
The Court will consider many factors in determining the appropriate outcome. Those factors are listed in Section 25 of the Matrimonial Causes Act 1973. The terms of a Postnuptial Agreement are not one of the factors specifically listed in this statutory provision.
However, the Court can be asked to determine the potential validity and relevance of a Postnuptial Agreement as a distinct issue – usually at an early point in a Financial Remedy case. The assessment would be treated in a similar manner to that of a Prenuptial Agreement. [We shall refer to Pre and Postnuptial Agreements collectively for these purposes as ‘Nuptial Agreements’.]
Up until around 15 years ago, Nuptial Agreements were regarded as a safeguard used only used by celebrities, sports people, the fabulously wealthy and the aristocracy.
It is important to emphasise that Nuptial Agreements are not automatically enforceable by the courts in England and Wales under current Law.
However, in a landmark case in October 2010, the Supreme Court stated that Courts should consider such Agreements if entered into freely and with full understanding, unless doing so would be unfair. This coupled with subsequent case law developments has seen Nuptial Agreements being used increasingly, and there is a body of case law evidencing how the Family Court has tested the validity of such Agreements.
This has prompted calls for reforming marriage laws, including a Law Commission proposal in 2014 to introduce a new form of marital property agreement. The Government is yet to respond to the Law Commission’s recommendations and whilst the issue of Nuptial Agreements was debated in the House of Lords in February 2025, there is no new legislation in the pipeline at this stage (June 2025).
The general view is now that the Family Court will likely follow the terms of a Nuptial Agreement which has been freely entered into by each party with a full appreciation of it’s implications, unless in the circumstances it would be unfair to hold parties to the agreement.
Where a Nuptial Agreement has been drafted in the correct circumstances, it provides parties with clarity going forward. Ideally, it will reduce the risk of costly litigation at a later date.
It should be noted however that the Court may consider a Postnuptial agreement with a little more caution that a Prenuptial Agreement because of the concerns that married partners may be more vulnerable to coercion and control.
The Court would look at the circumstances in which the Agreement was prepared and signed, and the terms provided for by the Agreement. Generally speaking, the document would have little to no validity if there had not been an exchange of full and frank disclosure between the parties before it was executed AND if both parties had not received (or at least been robustly advised to obtain) independent legal advice.
The Court would also examine the circumstances in which the Agreement was signed i.e. how close to the marriage date. In the case of a Postnuptial agreement, whether there was any pressure or coercion for one party to sign the document, etc? It is always borne in mind that an Agreement signed several (or many) years before the marriage breakdown, might not accurately reflect the parties’ intentions or a fair outcome at the time of their Divorce.
The Court would balance the need to consider the unfairness of not upholding an Agreement that had been relied upon, with the need to consider whether the terms within the Agreement represent a fair outcome at the time of the marriage breakdown and adequately meet the parties’ needs going forward.
How to go about it?
All parties considering entering into such an Agreement should have regard to the following basic considerations:-
- The Agreement can only be entered into if both parties are willing and able to proceed. By definition, a couple would need to be in agreement about what their intentions are to enter into a Postnuptial Agreement. There is no way to compel a party to enter into such an Agreement.
- The terms of a Postnuptial Agreement can be agreed directly between the parties, following a negotiation through solicitors or via Mediation.
- There should be a full exchange of financial disclosure between the parties before the terms of the Agreement are negotiated and agreed, including an examination of the current assets in the picture and how they were funded. The couple would need to be transparent with one another regarding their financial affairs, and discuss how they would want them to be divided if their marriage breaks down.
- The parties should each seek independent legal advice with regard to the financial situation and the proposed terms, but also the nature and effect of the Agreement. The Solicitors appointed by each party is likely to request sight of financial documentation, who will want full details of the current situation and the couple’s future plans. Until such time as there is full financial disclosure (and potentially an independent valuation of any assets) from both parties to provide a clearer picture of the financial situation, it would be difficult for any legal representative to advise either party regarding the appropriate terms and/ or the likely costs of finalising the Agreement. It may well be the case that parties’ respective legal representatives will advise that the proposed terms of the Agreement do not reflect the level of award that they might achieve if the Court were to determine the appropriate outcome if their marriage were to break down;
- If either or both parties have any assets overseas, it would also be prudent to take advice in those countries, or at least from lawyers specialising in those jurisdictions, as to the need to enter into ‘mirror’ agreements. Ideally this would be achieved round the same time The lawyers in different jurisdictions will need to liaise with one another.
- The arrangements proposed may necessitate the need for further, specialist advice e.g. tax, inheritance, etc.
- The parties would need to consider potential changes in circumstances, including what they would want to happen if they have children together. A Postnuptial Agreement might not be followed if it has failed to cater for changes in circumstances. Terms agreed early in the marriage might not be appropriate in years to come
- The parties would also need to consider making Wills, or updating any existing Wills, both to appoint Guardians for their Children and to confirm their intentions for their estates in the event of their death. They may also be advised to consider entering into Lasting Powers of Attorney.
Once the wording of the draft Postnuptial Agreement is agreed on both sides, it will need to be signed or executed. For the agreement to be legally binding, it needs to be signed as a Deed – preferably in the presence of a witness.
Conclusion
For the reasons noted above, the parties would need to bear in mind that the terms documented in a Postnuptial Agreement would not necessarily be 100% binding upon the Court in the event of a subsequent dispute if they were to subsequently Divorce.
With specialist advice, parties can enter into a Postnuptial Agreement in appropriate circumstances in order to give their Agreement the best chance of being followed in the future.
Any party considering the above options will need specific legal advice based upon their personal circumstances. Please contact Colette Blackburn or Helen Davies, Senior Associate Solicitors in our specialist Family Law Department or visit our Prenuptial and Postnuptial services page.
