However, once the wedding is over, it is not unusual for couples to come and see us to ask if it is still possible to enter into a prenup agreement.
Prenup agreement, by their very definition, can only be entered into before marriage. For those who are already married and want to enter into an agreement about what should happen to their assets if they were to divorce in the future, a post-nuptial agreement may be a suitable alternative.
A post-nuptial agreement is like a pre-nuptial agreement, in that it is an agreement about what would happen to each spouse’s assets if they were to divorce.
The key difference is that a post-nuptial agreement is entered into after a couple has been married, whereas a prenup agreement is entered into before marriage.
Just like prenup agreements, post-nuptial agreements are not legally binding in England and Wales.
Independent legal advice
Both you and your spouse should receive independent legal advice before you sign any agreement. Without this, your spouse could, for example, argue that they didn’t fully understand the implications of what they were signing and that a court should therefore not enforce the agreement.
No undue influence
Post-nuptial agreements must be signed voluntarily. If there was any undue pressure from one party, a court may not enforce the agreement.
Full financial disclosure
If you and your spouse do not fully disclose your finances to each other, less weight could be given to your post-nuptial agreement should you ever divorce.
Post-nuptial agreements should be fair
If a judge thinks that enforcing your post-nuptial agreement would be unfair, they may decide not to do so.
Provisions for change of circumstances
Including provisions for review should your circumstances change by, for example, having children, is also a good idea if you want to ensure (as best you can) that your post-nuptial agreement would be enforced in the future.
Even though these prenup agreements are not legally binding in England and Wales at the moment, entering into them correctly can help to give your agreement the best chance of being enforced by a judge in the future, should you ever need it to be.
Although pre and post-nuptial agreements can appear to be unromantic, entering into one can help to make the divorce process less time-consuming and stressful if you were ever to separate in the future.
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