Pre-nuptial agreements are now a fairly common occurrence within the marital landscape but, reports, a growing number of married couples are also now using post-nuptial agreements.

As its name suggests, a post-nuptial agreement (post-nup for short) is entered into after a marriage has taken place. It sets out details of what should happen to the couple’s assets and finances should the marriage unfortunately break down. As long as both parties have legal capacity to enter into a binding contract, a post-nup can be entered into at any time after a couple has married.

There are a variety of reasons why couples enter into post-nups.

Some couples for example, may have children from a previous marriage or relationship and want to protect any assets taken into the marriage with them, so that their children will ultimately benefit. Or it might be that one spouse has a sudden, unexpected rise in his or her wealth (such as might happen if he or she receives a legacy) and now thinks it wise to have an agreement put in place dealing with the division of assets, in the event that the marriage breaks down.

A post-nup might also be used later down the line by a couple whose marriage is already in difficulty and who wish to try to avoid wrangling over finances, should they fail to overcome their marital problems.

There needn’t, however, be a specific reason for entering into a post-nup. Indeed, couples who lacked the time or inclination to enter into a pre-nuptial agreement may now, being older and wiser, think it sensible for a post-nup to be put in place even though their marriage is perfectly happy.

As the law stands, post-nups are not legally binding. However, they are increasingly being taken into account by the courts when determining claims for financial settlement on divorce.

A court must, when considering whether and to what extent a post-nup should be applied, assess whether the agreement is deemed fair and reasonable to both parties. It must also be satisfied that both spouses freely and willingly entered into the post-nup. If the agreement of a spouse to a post-nup was shown to be obtained through undue influence or under duress then its validity may well be affected.

Ideally, both spouses should seek separate legal advice before entering into a post-nup and be made aware of its implications before signing it.

Likewise, both parties should make full disclosure of their assets and liabilities to the other spouse, so that each can make an informed decision about whether or not to agree to the terms of the post-nup that they’ve been asked to sign. Proven misrepresentation of assets and liabilities by one spouse to the other can affect the validity of the agreement.

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