There may be reasons why a couple proposing marriage decide against a prenuptial agreement, such as lack of appetite for the task or limited time available.
Today the act of marriage itself is no longer a barrier to a couple who reconsider their position after their union and decide to enter into an arrangement as to how their assets would be divided in the event of separation. So yes, parties can enter into a post nuptial agreement.
It is worth noting that neither the pre nor post nuptial agreement carry statutory validity in England and Wales. However, the courts are increasingly supportive of these agreements and enforceability is possible following precedents established in case law, which means cases in dispute that have been decided by the court.
Owing to the case of Radmacher v Granatino  UKSC,  2 FLR 1900 the same principles now apply to both pre and post nuptial agreements. This is the leading case in this area of law and it established that the court must have regard to any pre or post nuptial agreement if the marriage later fails.
Whilst the Radmacher case concerned a pre nuptial agreement the Supreme Court, in their judgement, also offered guidance on the subject of post nuptial agreements. This was to the effect that an agreement concluded in anticipation of marriage or one concluded after should be treated no differently.
In practical terms though there may be circumstances where it is right to distinguish between the pre and post nuptial agreement and it should be remembered that every case will be considered on its own merits.
As to the content of a post nuptial agreement, again there is little to identify the format from that of the pre nuptial agreement. In summary the following principles apply in preparation of any agreement and should be observed:
- The agreement should be freely entered into with no misrepresentation from or pressure placed on either party;
- Full and frank financial disclosure from each party should preferably be carried out before the agreement is finalised;
- Both parties should have the benefit of independent legal advice and be clear and satisfied following that advice as to the implications of the agreement;
- The must be intention to make the agreement binding in the event of separation.
Clearly, the drafting of a post nuptial agreement is complex. In the absence of statutory recognition it is even more important that the agreement is completed accurately to offer the best chance that it will be as binding as possible. To achieve this specialist guidance is a necessity.
For more information please contact our specialist family law team on 0845 894 1622 or email email@example.com