A postnuptial agreement is different to a prenuptial agreement. A prenup, as it is often shortened to, occurs prior to the marriage between two people. This does not always have the best legal stance, as you may have read on our page before. This is because, through a marriage, circumstances may change where the courts may not see it fit to uphold the prenup and even a postnup as it was made prior to, for example, children were born. A postnup is drawn up after a couple get married and this document would detail how the parties would share their assets in the event of their divorce. For this reason, to further cement the prenup, it can be a good idea to think about having a postnup to have a better chance of this legally standing in the courts, though as with everything, there never is a guarantee.
The Good…
The party’s decision to enter a postnup is usually based on the idea to avoid court proceedings and to be as amicable as possible in the event of separation. There are a few things that can be included in a postnup agreement such as the agreement to separate, periodical payments, property and children.
These agreements have their benefits, such as, a postnup agreement can be entered into fairly quickly and could, at times, be made at a lower cost and can avoid any animosities and bitterness that can ordinarily be involved in the case of a divorce.
Also, one of the greatest advantages of this is that there is such flexibility involved in a postnup, almost anything can be included and agreed to! So, where a court may not be able to order certain debts being paid off by a certain individual or certain outgoings being paid in a specific way, this is something that in a postnup parties can agree to between themselves and voila (almost)! This is certainly something many people find attractive as this allows for them to customise and really look at their positions. This allows parties to do what’s best for each party, rather than having a court make the decisions for them.
Postnups are often used by celebrities too, this helps them choose which assets (with agreement of their spouse of course) they are to distribute upon divorce. So, where an individual or even a couple’s specific assets, maybe such as a business, they are looking to protect this can be included within the postnup.
The Bad…
Though this may all seem fine and appealing, there are some points which need to be acknowledged and seriously thought about.
A postnup would be enforced in the same way as all other contracts would be. So, if the postnup was to be breached in any way, then the other party would need to seek damages to allow them to cover any losses they have faced due to the breach. There are also other remedies available, such as specific performance or an injunction to force the other party to carry out the action as dictated in the agreement. For these reasons, a postnup is a lot more difficult to enforce upon parties than a court order would be following the court process of a divorce.
The Ugly…
It may seem on the service that postnups are the best option. There are factors to weigh up. It is important to note that when parties are creating a postnup, this is done in a fair and reasonable manner and if any injustices are being made towards any parties, then there needs to be a very good and significant reason for this. Something to bear in mind is that prenups can also be varied by the courts too…
Postnups are more prevalent in the US, but they are on this rise in the UK too !
I guess there are just no guarantees in life, but it is always better to seek legal advice to protect yourself and all parties involved. If it’s fair, reasonable and advice has been sought, the courts are more likely to follow the postnup agreement.
If you would like advice on a postnuptial agreement or a prenuptial agreement or require further information, please do not hesitate to contact our experienced family law team at Bond Adams LLP Solicitors. You can contact us on 0116 285 8080 or email us at lawyers@bondadams.com.