February is one of the most popular months for proposals in the UK. With 12% of all proposals happening in February (second only to December’s 17%), it’s a time when many couples are planning their futures together.
But whilst most engaged and newly married couples focus on venue bookings and guest lists, far fewer consider the practical legal protections available both before and after marriage. It’s not the most romantic topic, certainly, but discussing financial agreements can be one of the most caring things you do for your relationship.
One option that many married couples don’t know exists is a postnuptial agreement, often referred to as a postnup.
In this guide, we’ll explain what postnuptial agreements are, why couples choose them, how they work in England and Wales, and whether one might be right for you.
What Is a Postnuptial Agreement?
A postnuptial agreement is a formal, written contract entered into by spouses after they’re already married. It sets out how their assets, finances, and other matters will be handled in the event of a separation or divorce.
The key difference between a prenup and a postnup is timing. Prenuptial agreements are signed before marriage, whilst postnuptial agreements are created during the marriage. Both serve similar protective purposes, but a postnup is specifically for couples who are already married.
It’s worth noting that whilst prenups are more commonly discussed, postnups can be just as valuable and carry similar legal weight in England and Wales. The main difference is simply when they’re created.
Why Would Anyone Want a Postnuptial Agreement?
We’ll address this question head-on, because it’s often the first thing people ask: why would you need a financial agreement if your marriage is going well?
Thinking about or discussing a postnup doesn’t mean your marriage is in trouble. In fact, many couples find that having clear financial agreements actually strengthens their relationship by removing uncertainty and the potential for future conflict. When both parties know exactly where they stand financially, it can reduce stress and allow you to focus on what really matters in your marriage.
Here are some common situations where couples consider postnuptial agreements:
After receiving a significant inheritance or gift: Perhaps one spouse has inherited family property or substantial assets during the marriage. They may want to ensure these remain protected for their family line or for children from a previous relationship, whilst still being fair to their current spouse.
Following a career change or business launch: When one spouse starts a business or makes a significant career move, a postnup can protect that business from being divided in a future divorce, whilst ensuring the other spouse is fairly provided for. This is particularly common when one partner takes on significant financial risk to launch a new venture.
After reconciling from a separation: Couples who have separated and then decided to give their marriage another chance might use postnups to create financial clarity and rebuild trust. Having these agreements in place can provide reassurance to both parties as they work on their relationship.
Protecting children from previous relationships: When one or both spouses have children from previous relationships, a postnup can ensure assets are preserved for those children whilst still providing fairly for the current spouse. This can give peace of mind to parents who want to protect their children’s inheritance.
Addressing the lack of a prenup: Some couples simply wish they’d had a prenuptial agreement but didn’t arrange one before the wedding. A postnup allows them to create the protection they missed out on.
Different attitudes towards money or debt: When spouses have very different financial situations or habits, a postnup can protect both parties and reduce money-related stress in the marriage. For instance, if one spouse has significant debts from before the marriage, a postnup can protect the other spouse from being responsible for these if the relationship ends.
To achieve peace of mind: Sometimes, knowing that there’s a clear plan in place can make both parties feel more secure and able to focus on enjoying their relationship rather than worrying about “what ifs.” This is particularly true for people who have been through difficult divorces before or who have seen friends or family members go through contentious financial disputes.
The common thread in all these situations is that postnups provide clarity and fairness for both parties.
Are Postnuptial Agreements Legally Recognised in England and Wales?
Yes, postnuptial agreements are recognised by courts in England and Wales and can carry significant weight in divorce proceedings.
However, they are not automatically legally binding. This means that the court retains discretion to decide whether to uphold the agreement. Unlike a standard contract for buying a house or a car, which courts will almost always enforce, nuptial agreements are subject to additional scrutiny.
The court will consider whether the agreement should be followed based on several factors, with the primary consideration being fairness and the welfare of any children.
In practice, if your postnuptial agreement has been properly prepared, with both parties receiving independent legal advice, full financial disclosure, no undue pressure, and terms that are fair, the court is very likely to uphold it. The courts recognise that adults should be free to make their own financial arrangements, and judges are generally reluctant to override agreements that have been entered into properly and fairly.
It’s also worth noting that postnups and prenups have similar legal standing in England and Wales. Both are treated in much the same way by the courts, with the main difference being when they’re created. If properly prepared, both types of agreement are likely to be upheld.
So, whilst postnups aren’t guaranteed to be followed in every case, they are respected and very likely to be upheld if they meet the necessary requirements.
What Makes a Postnuptial Agreement Enforceable?
For a court to uphold your postnuptial agreement, certain conditions must be met. Understanding these requirements is crucial if you want your agreement to be effective.
Voluntary Entry
Both parties must enter into the agreement freely, without pressure, duress, or undue influence. Neither party should feel forced or rushed into signing.
“Undue influence” can take many forms. It might be one spouse threatening to leave if the other doesn’t sign, emotional manipulation, extreme pressure, or taking advantage of a vulnerable moment (such as when the other spouse is seriously ill or has just given birth).
Full Financial Disclosure
Each party must provide a complete, honest disclosure of their financial circumstances.
Full disclosure includes:
- All property and real estate.
- Savings and bank accounts.
- Investments and shares.
- Pension entitlements.
- Debts and liabilities.
- Business interests and their value.
This is extremely important, as it is unlikely anybody can make an informed decision about a fair financial agreement if they don’t know what they’re agreeing to divide or protect.
If one party hides significant assets or liabilities, the court can set aside the entire agreement. Even if the concealment was inadvertent rather than deliberate, it can still be grounds for the court to disregard the postnup.
Independent Legal Advice
Both parties should receive separate, independent legal advice before signing a postnuptial agreement. This means each spouse should instruct their own solicitor who represents their interests alone, not jointly.
Can you do a postnuptial agreement without a lawyer? Technically, yes, there’s no legal requirement to have a solicitor. However, we strongly advise against it if you want your agreement to be upheld by a court.
DIY postnups or those prepared without proper legal advice are far more likely to be challenged successfully and set aside. The investment in proper legal advice is key to creating an enforceable agreement.
Having independent legal advice also protects both parties from later claims that they didn’t understand what they were agreeing to or that they were taken advantage of.
Fairness
The agreement must be fair to both parties and meet the needs of any children. This is perhaps the most important requirement, and it’s why courts retain discretion even when all other conditions are met.
Courts won’t uphold agreements that leave one party in significant financial hardship or that fail to meet the needs of children. When assessing fairness, courts consider:
- Housing needs for both parties.
- Current income and ability to earn.
- Age and health of both parties.
- Contributions to the marriage (financial and non-financial, including caring for children or supporting the other’s career).
Care responsibilities for children.
Proper Execution
The agreement should be properly executed as a legal document. This means:
These technical requirements matter because they demonstrate that the agreement is a serious legal document that both parties intended to be binding.
Additional Considerations
Regular review: Circumstances change over time, and your postnup should reflect your current situation. Agreements should be reviewed periodically and updated if necessary. An agreement that was fair when signed might become unfair years later if circumstances have changed significantly.
Adequate time: There should be adequate time between negotiation and signing. Both parties need space to consider the terms, seek advice, and ensure they’re comfortable with the agreement.
How to Create a Postnuptial Agreement
If you’ve decided a postnuptial agreement might be right for you, here’s what the process typically involves:
Initial Discussion Between Spouses
Start with an honest, open conversation between yourselves about why you want a postnup and what you want it to cover.
Discuss your goals clearly:
- Is it about protecting inherited assets?
- Providing clarity after a difficult period?
- Protecting a business?
- Ensuring provision for children from previous relationships?
Achieving peace of mind?
Seek Independent Legal Advice
Each spouse should instruct their own solicitor. You shouldn’t share a solicitor, even if you think you agree on everything.
Your solicitor will:
- Explain how postnups work legally in England and Wales
- Discuss what can and cannot be included
- Advise on what would be fair in your circumstances
- Explain the likely outcome if the agreement were tested in court
- Guide you through the next steps
This initial consultation helps you understand the process and what to expect.
Full Financial Disclosure
Both parties prepare complete disclosure of their financial positions. This means gathering documentation including:
- Bank statements
- Property deeds and valuations
- Pension statements
- Business accounts and valuations
- Investment portfolios
- Details of debts and liabilities
- Information about expected inheritances
This stage can take some time; however, it’s essential. Without full disclosure, your agreement won’t be enforceable.
Negotiation and Drafting
Your solicitors will negotiate terms on behalf of both of you. Usually, one solicitor drafts the agreement, which is then reviewed by the other solicitor, who may suggest amendments.
This stage may involve several rounds of negotiation and amendments as both sides work to reach terms that are fair and acceptable to both parties. Whilst this back-and-forth can sometimes feel frustrating, it’s an important part of ensuring the final agreement is balanced and enforceable.
Review and Signing
Once the agreement is finalised, both parties review it carefully with their solicitors. Your solicitor will ensure you fully understand every term and what you’re agreeing to.
When both parties are satisfied, the agreement is signed as a deed with proper witnessing. This makes it a formal legal document.
Keep It Updated
A postnuptial agreement isn’t a “set and forget” document. You should review it periodically, typically every 3-5 years, and definitely after any major life changes such as having children or significant changes to either party’s career or financial situation.
Timeline and Costs
Timeline: The process typically takes several weeks to a few months, depending on the complexity of your finances and how quickly both parties can provide information and reach an agreement
Costs: Legal fees vary depending on your specific situation and your location. However, we would advise that you plan to invest in legal counsel, as it is essential for creating an enforceable agreement.
What Can Be Included in a Postnuptial Agreement?
Postnuptial agreements can cover a wide range of financial matters. Here’s what you can typically include:
Assets and Property
- How the family home will be dealt with (who keeps it, whether it’s sold, how proceeds are divided)
- Investment properties and holiday homes
- Business interests and how they’re valued
- Savings and bank accounts
- Investments, shares, and portfolios
- Valuable personal possessions (art, jewellery, collections)
Income and Maintenance
- Spousal maintenance (ongoing financial support from one spouse to the other)
- Whether either party will pay maintenance, how much, and for how long
- Income from businesses or investments
Pensions
- How pension assets will be shared or protected
- Whether one party’s pension will be offset against other assets
Debts
- Responsibility for existing debts
- How future debts incurred during the marriage will be handled
- Protection from a spouse’s business debts
Inheritances
- Protection of inherited assets or family heirlooms
- Keeping certain assets within bloodlines
- Ensuring assets pass to children from previous relationships
What Cannot Be Included
There are some matters that postnuptial agreements cannot cover:
Child maintenance: Courts always retain control over child maintenance. You cannot contract out of your responsibility to support your children financially, and courts won’t be bound by any agreement that attempts to do so.
Child arrangements: Decisions about children’s upbringing cannot be predetermined in a postnup. These decisions must be made in the best interests of the child at the time.
Anything illegal or contrary to public policy: You cannot include terms that would require either party to do something illegal or that violate public policy.
Terms that would leave one party destitute: Courts will not uphold agreements that leave one spouse without adequate provision for their basic needs.
Every couple’s situation is different, and your postnup should reflect what matters most to you.
Common Concerns and Misconceptions
Let’s address some of the concerns and misconceptions that often arise when couples consider postnuptial agreements:
“Won’t asking for a postnup damage my marriage?”
This is one of the most common worries, but many couples actually find the opposite to be true. The process of creating a postnup requires honest communication about money, future goals, trust and values.
When approached constructively, discussing a postnup can strengthen your relationship by removing ambiguity and ensuring both parties feel protected and valued.
Think of it this way: you probably have home insurance and car insurance, but you don’t get these because you’re planning to have your house burn down or crash your car. You get them because you want to protect yourself and your loved ones if something goes wrong.
“Are they only for wealthy people?”
No. Whilst postnups are perhaps more commonly discussed in the context of high-net-worth individuals, they can be valuable for couples at all income levels.
They’re particularly useful where:
- One or both parties have children from previous relationships.
- There’s a family business to protect.
- One spouse has significantly more debt than the other.
- There are significant differences in earning capacity.
- One spouse is giving up work to care for children.
- Either party has inherited or expects to inherit property or assets.
You don’t need to be wealthy to benefit from the clarity and protection a postnup provides.
“Can we just use a template from the internet?”
We strongly advise against this. DIY postnups or those based on internet templates are less likely to be upheld by courts if they’re ever challenged.
Every couple’s circumstances are different, and what works for one couple won’t necessarily be appropriate for another. More importantly, without independent legal advice for both parties, the court is far less likely to give weight to the agreement.
When Should You Review Your Postnuptial Agreement?
After Major Life Changes
You should definitely review and potentially update your postnup after significant life events:
Birth or adoption of children: New children change your financial needs and priorities considerably.
Significant change in income or assets: If either party experiences a substantial increase or decrease in income or wealth, the agreement may need adjusting.
Receiving an inheritance: A major inheritance can significantly change the financial landscape and may warrant revising the agreement.
Starting or selling a business: Business ventures create new assets to protect and new financial considerations.
Serious illness or disability: If either party develops a serious health condition, their needs may change substantially.
Retirement: Moving from working life to retirement represents a major shift in financial circumstances.
Relocation: Moving abroad or to a different part of the UK can affect housing values, income, and needs.
Beyond responding to specific life events, we recommend reviewing your postnuptial agreement every 3-5 years as standard practice. This ensures the agreement still reflects your circumstances and intentions, even if nothing dramatic has changed.
How to Review
The review process is straightforward:
- Contact your family law solicitor: Get back in touch with the solicitor who helped you create the original agreement, or instruct a new one if necessary.
- Provide updated financial disclosure: Both parties should prepare current information about their finances, just as you did when creating the original agreement.
- Discuss whether terms need adjusting: Your solicitor will help you consider whether the current terms are still appropriate or whether they need updating.
- Sign an updated agreement if necessary: If changes are needed, you’ll go through a similar process to the original agreement, with both parties receiving independent legal advice before signing.
Key Takeaways
Before we wrap up, here are the essential points to remember about postnuptial agreements:
- Postnuptial agreements are recognised by law in England and Wales, but they are not automatically binding. Courts retain discretion to decide whether to uphold them.
- Courts will generally uphold a postnuptial agreement if it’s entered into freely, with full financial disclosure and independent legal advice, and if the terms are fair in all the circumstances.
- Such agreements cannot override the court’s duty to consider the needs of any children. Child maintenance and welfare will always be determined by what’s in the child’s best interests, not what’s in the postnup.
- Postnups and prenups have similar legal standing—the main difference is simply timing. Both can be effective tools for financial protection if properly prepared.
- Regular reviews keep your agreement current and protective. Don’t create a postnup and then forget about it. Review it periodically to ensure it still reflects your circumstances.
Get Expert Guidance on Postnuptial Agreements
If you’re considering a postnuptial agreement or would like to understand how one could benefit you in your situation, Tann Law’s experienced family law team can help.
We’ll guide you through the process with care and professionalism, ensuring your interests are protected whilst maintaining fairness for both parties. We understand these conversations aren’t always easy, and we’re here to make the process as clear and straightforward as possible.
Whether you’re exploring your options or ready to start the process, we can provide the expert advice you need.
Contact Tann Law Solicitors today for a confidential consultation:
Tel: 0247 763 2323
Email: info@tannlaw.co.ukOr, explore our prenuptial agreement services if you’re not yet married.