The Rise of the Post-Nuptial Agreement

Among legal and social theorists, there is a long-running debate about whether laws shape society or society shapes laws. In other words, is the law reactive or proactive; does it respond to changes in society or does it instigate those changes? There are sound arguments in both camps but the rise of post-nuptial agreements is most likely reactive as opposed to proactive.

Increased cases of divorce among the over 50s

While divorce rates in the UK have been regrettably high for a long time, the last few years have witnessed quite a noticeable increase in cases of divorce among couples over the age of 50. In fact, there appear to be so many 50-plus couples going their separate ways that they have earned their own idiomatic characterisation – “silver splitters”.

The causes of this increase are entirely unclear. Equally, there is no way of knowing whether this represents a long-term trend or merely a temporary phenomenon. For sure, though, divorce proceedings are notoriously costly both in terms of money and emotional damage, particularly when there are children in the family.

Most people are, by now, aware of or even familiar with pre-nuptial agreements or ‘prenups’ as they are more commonly known. These are contracts entered into by a couple prior to getting married, the purpose of which is to protect the assets of either one or both parties to the impending marriage. They have been recognised in the UK for quite a few years but are somewhat limited in scope.

Now, though, there are post-nuptial agreements. In other words, an agreement entered into by a couple who are already married but wish to codify into a written agreement the various financial or social arrangements that they have agreed to live with and abide by.

Why are they needed?

Relationships rarely stand still; they evolve and change as the years go by. Marriages are no exception. Many couples who have been together for many years or even decades find themselves unhappy in their marriage, angry about being taken for granted by their spouse, or feeling unsupported, ground down or unloved. Back in the old days, many couples would seek what used to be known as ‘marriage counselling’. Of course, this option is still available, although it is probably now called ‘therapy’.

However, the other option of making a post-nuptial agreement is now available too. For couples that may be already seeking therapy or where one party is considering applying for divorce, it may be the thing that saves the marriage and allows the parties to live happier lives together. Many lawyers regard post-nuptial agreements as a sort of ‘Marriage MOT’.

What kinds of things are referred to in a post-nuptial agreement?

There is no standard or required form, nor, theoretically at least, are there any limitations on what can be covered in the agreement. Such things as living arrangements, financial arrangements, childcare arrangements and even nuptial arrangements.

It may also include such matters as agreed time that the couple will spend together, what activities they will do together and other activities that each spouse may want to pursue alone or with others; who will be responsible for each of the household chores and things such as holiday and travel arrangements. The agreement can cover anything that the parties can think of, which, for them, is or has been a bone of contention and which they want to regulate.

Do you need a lawyer for a post-nuptial agreement? There is no rule which states that you must instruct a lawyer. But these things can be very delicate and an experienced family lawyer will likely possess the sensitivity, diplomacy and negotiating skills that make a positive outcome more likely.

Are post-nuptial agreements enforceable?

Post-nuptial agreements are not currently binding in the UK. However, the question of enforceability may be moot anyway because if for whatever reason, the terms of the agreement have been broken or either party has failed to observe them; then it may be that the marriage is heading inexorably for the rocks anyway.

If the couple does end up applying for divorce, then a Judge is not constrained by any terms contained in the post-nuptial agreement when ruling on a financial settlement. The terms of the agreement will, however, be taken into consideration.

This reinforces the point that a post-nuptial agreement is not to be taken lightly and should be properly and professionally drafted. Furthermore, both parties must enter the agreement freely and voluntarily without being subjected to undue pressure or duress and, before the agreement is signed, both parties must make full disclosure of their assets, including properties, bank accounts, pension, assets, securities, savings and income.

This is why any couple considering a post-nuptial agreement should seek professional legal advice and, just to be on the safe side, ensure that each party receives independent advice.

The advent of the post-nuptial agreement may prove to be a mechanism which saves marriages which would otherwise end in an acrimonious, damaging and costly divorce. But it is important that they are taken seriously, planned properly and drawn up with acuity and focus.

For further information and trusted legal advice regarding Post-Nuptial Agreements in the UK, get in touch with our Resolution-accredited Family Lawyers at Carlsons Solicitors.