Post-nuptial agreements: Providing certainty in uncertain times

What is a post-nuptial agreement?

A post-nuptial agreement (a “post-nup”) is an agreement signed between spouses during their marriage that seeks to regulate the financial consequences of a subsequent breakdown of the marriage. As the name suggests a post-nup is distinguished from its better-known cousin the pre-nuptial agreement in that it can be entered into at any point during a marriage either as a variation to a pre-nup or as an agreement in its own right.

What is the legal effect?

In contrast to much of continental Europe in England and Wales pre and post-nups are not legally binding contracts. Here the court retains ultimate discretion as to how assets are divided and what weight (if any) to ascribe to a nuptial agreement in its broad discretion to achieve a fair outcome on divorce.

That said where both spouses have entered into a pre or post-nuptial agreement with a full appreciation of its implications (and in the absence of any vitiating factors) they should expect to be held to its terms unless to do so would leave either spouse in a “predicament of real need”. The...

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