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Prenup Vs Postnup – What’s the Difference?

17 Aug 2020

Author: Hepburn Delaney

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Thinking about the possibility of a marriage ending in divorce isn’t a pleasant conversation, but with 42% of marriages ending like so in England and Wales, it may be important to take the necessary steps to protect your assets in the future.

Prenups and postnups allow couples to negotiate, in advance, what they want to happen in terms of their assets and finances if they were to get a divorce further down the line. But what is the difference between the two agreements?

What is a prenuptial agreement?

A prenuptial agreement, also known as a premarital agreement, refers to a contract entered into by couples prior to getting married. For couples entering into a civil partnership, the same type of contract is called a pre-registration agreement. The purpose of a prenup is to settle finances and the division of assets in the event of a divorce in the future.

The Law Commission suggests that prenups should be signed at least 28 days before the wedding and meet the needs of both parties in the relationship. Doing so allows both parties to fully consider their financial positions on an individual basis, as well as together, without undue influences or pressures.

What is a postnuptial agreement?

A postnuptial agreement is very similar to a prenuptial agreement, except for the contract is entered into after a couple has got married.

What can be included in a prenup or postnup?

The following can be included in a prenup or postnup agreement:

  • Income, including future income
  • Assets including but not limited to property, investments and overseas interests, plus any gains on such assets
  • Personal belongings and other chattels
  • Debts including payment of any outstanding debts
  • Expectations of any gifts and/or inheritances
  • What will be covered in Wills in the event of death
  • Insurance coverage

It must also be clear whether the above are in individual or joint names accounts and whether they were acquired before or during the marriage.

What are the benefits of having a prenup or postnup?

Whilst negotiating a prenup prior to getting married may be seen as an uncomfortable process, having a prenup in place can save a lot of money in the unfortunate event of a divorce. As the division of assets has already been agreed within the prenup, this can prevent lengthy, expensive court cases further down the line.

Similarly to a prenup, discussing a postnup with your partner may be a difficult conversation to have, but it can reduce conflict in case of divorce and prevent the need for paying expensive legal fees should a divorce occur.

Both types of agreement can also give certainty and peace of mind. Nuptial agreements are particularly important for couples who have different amounts of money or properties, who have children from previous relationships, or those who are expecting to receive a large inheritance.

Are prenups and postnups legally binding?

In England and Wales, nuptial agreements are not yet strictly legally binding. In the event that couples do get a divorce, the court must be fully satisfied that the contract was drawn up properly at the time the agreement was signed and has the power to evaluate if the agreement is fair for both parties.

The court may challenge issues, such as:

  • Is the agreement fair for both parties?
  • Were either party pressured into signing the agreement?
  • Did both parties fully understand the implications of signing the agreement?
  • Did both parties provide full financial disclosure of their assets?

The court has the power to impose a financial settlement, regardless of whether this results in changes to the agreements stated.

However, as long as a nuptial agreement is drawn up correctly, these contracts can still carry a lot of weight and are the best way to protect your financial assets in the event of a divorce.

How can a Solicitor help with prenups or postnups?

At Hepburn Delaney, our Family Law Solicitors are specialists in preparing and negotiating the terms of both prenuptial and postnuptial agreements. If you wish to set up or check an agreement in order to protect your assets in the event of divorce, our experienced team can provide valuable support. For more information, contact us on 01442 218090 or email info@hepburndelaney.co.uk.