Can you get a prenup after marriage?

This is a question that many couples ask, particularly when they realise that they might have missed the opportunity to set up a prenuptial agreement before their wedding or a pre-registration document before their civil partnership.

This blog will refer to prenups and postnups, but the same applies to the registration documents linked to a civil partnership. The good news is that while you cannot get a prenup after marriage or civil partnership, there is an equivalent option available known as a postnuptial agreement or ‘postnup’.

What is a postnuptial agreement?

A postnuptial agreement is a legal contract between partners who are already married or civil partners. Like a prenuptial agreement, a postnup allows couples to specify how their financial assets would be divided in the event of a divorce or dissolution of civil partnership. Essentially, it serves the same function as a prenup but is entered into after the marriage or civil partnership has taken place.

While it might seem unromantic, having a postnuptial agreement can save a lot of time, money, and emotional strain if the marriage or civil partnership were to end in separation, divorce or dissolution in the future.

It is recommended a prenup is reviewed after significant events, for example the birth of children of the family, and the agreement is amended in light of this. Any amendments made are then recorded in a postnuptial agreement.

Is a postnuptial agreement legally binding?

The case of McLeod v McLeod in 2008 established that postnuptial agreements can be legally binding in the UK, provided certain conditions are met. To enhance the likelihood of a postnup being upheld in court, the following steps should be followed:

Full financial disclosure

Both parties must provide a complete and honest disclosure of their property, assets, and income. This ensures transparency and fairness. Fundamentally, it allows both parties to understand the consequences of entering into the agreement.

Independent legal advice

Each partner should obtain independent legal advice from their own solicitor to ensure they fully understand the terms and implications of the agreement.

Fair terms

The agreement must be fair and provide for the needs of both partners in the event of divorce or dissolution.

Child maintenance

While the agreement can outline the division of assets and spousal maintenance, it cannot exclude the responsibility for child maintenance, for which the ultimate jurisdiction lies with the Child Maintenance Service.

Regular reviews

The agreement should include provisions for regular reviews, particularly at significant life changes, such as the birth of a child or a change in financial circumstances.

It is essential to seek expert legal advice when drafting a postnuptial agreement to ensure that all legal requirements are met, increasing the likelihood that the agreement will be considered valid by the courts.

What can a postnuptial agreement cover?

A postnuptial agreement can address a variety of financial and property-related issues, including:

• Division of property: Clarifying how property owned by either party or jointly will be divided.
• Spousal maintenance: Outlining any agreements for spousal support.
• Pension division: Detailing how pension assets will be divided.
• Debt responsibility: Specifying how current or future debts will be managed.
• Inheritance: Arrangements for any future inheritance received by either party.
• Life insurance: Terms regarding life insurance policies and their beneficiaries.

A postnuptial agreement can be tailored to address the specific needs and circumstances of the couple, providing a clear framework for financial matters.

How to get a postnuptial agreement

Step 1: Consult a specialist family lawyer

The first step in getting a postnuptial agreement is to consult with a specialist family lawyer. They can provide advice on what to consider and what the agreement should cover.

Step 2: Discuss with your partner

You will need to have a candid discussion with your partner about the idea of a postnuptial agreement. It is important to approach this conversation with sensitivity and openness. A specialist family lawyer can provide you with guidance on this.

Step 3: Full financial disclosure

Both parties must make a full disclosure of their financial assets. This includes detailing all property, investments, debts, and income. Transparency is crucial to ensure fairness.

Step 4: Agree on terms

Both of you will need to agree on how the assets will be divided and any other practical matters, such as who would remain in the family home in the event of a separation.

Step 5: Drafting the agreement

Once the terms are agreed upon, your solicitor will draft the postnuptial agreement. Both parties will need to review the draft and ensure it reflects their intentions accurately.

Step 6: Independent legal advice

Each of you should seek independent legal advice to review the agreement. This step is necessary for the agreement to have legal standing.

Step 7: Signing the agreement

After receiving legal advice and making any necessary amendments, both parties can sign the agreement. It is recommended to have the signatures witnessed to add an extra layer of formality.

How long after marriage can you get a postnuptial agreement?

You can get a postnuptial agreement at any point after you are married or entered into a civil partnership. There is no specific timeframe within which it must be done.

Can you change a prenup after marriage?

You cannot change a prenup after marriage. However, if circumstances have changed, such as the birth of children or significant financial changes, you can replace it with a postnuptial agreement. This allows for the terms to be updated to reflect the current situation.

Should I sign a postnuptial agreement?

Before signing a postnuptial agreement, it is crucial to ensure that it is fair to both parties. Seeking advice from an experienced family lawyer is essential to review the agreement and ensure it meets all legal requirements. Signing must be a voluntary decision made without any pressure or coercion.

Contact us

At Moore Barlow, our family lawyers are here to help you create a fair and robust postnuptial agreement. We aim to provide clear, professional advice and support throughout the process, ensuring your financial interests are protected. Contact us today to learn more about how we can assist you.

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