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An increasing number of couples are entering into post-nuptial agreements, sometimes many years into their marriage, to set out exactly who gets what if they divorce.

The rise in second marriages and more complicated family structures is undoubtedly a contributing factor with solicitors seeing around four times as many couples seeking post-nuptial agreements, known as post-nups, as they did five years ago.

Ayesha Vardag, one of Britain’s leading divorce lawyers, signed a post-nup with her husband declaring it ‘a very pubic celebration of our independence and love for each other’ and many couples now view it as a kind of life insurance for their marriage.

Reasons for wanting a post-nup

Sometimes, couples seek a post-nup because there was not enough time before their wedding to prepare a detailed and considered pre-nuptial agreement. Other key reasons include when:

• One spouse has received a significant legacy or windfall which they wish to protect in the event of a subsequent divorce;
• There has been a considerable change in circumstance like one spouse falling seriously ill or a major debt being discovered;
• There are difficulties in the marriage, although no conclusion has been reached about divorce, and the couple want to see what the financial terms of a divorce might be;
• One spouse has cheated and the other demands an outline of financial security just in case they divorce later;
• A couple simply want to ensure that all assets, and the custody of any children, will be split down the middle if they divorce.

Legally binding?

Divorce courts do not have to be bound by the terms of a either a pre-nuptial or a post-nuptial agreement but in practice, they are doing so more and more often.

An important case, McLeod v McLeod in 2008, when the court found that a post-nup was ‘valid and enforceable’, has also set a precedent.

To ensure, as far as possible, that a post-nup is legally binding it’s important that:

• Both parties obtain independent legal advice from their own solicitor;
• Both fully disclose all property, assets and income;
• The agreement is fair to both parties;
• Neither party is put under duress or pressure to sign;
• Any children or dependants will be supported;
• There is provision for regular reviews during the marriage and/or when significant life events occur such as the birth of a child.

For help and legal advice on this area of the law, please contact our Family and Divorce team or pop into one of our 11 local offices