What’s the difference between a prenup and a postnup?

A prenuptial or postnuptial agreement is hardly a romantic concept. After all, marriage and civil partnerships are supposed to be about life-long commitment. However, with an estimated 42% of UK marriages ending in divorce, perhaps it’s worth being a little pragmatic.

Prenuptial and postnuptial agreements are contracts that are drawn up either before (prenup) or after (postnup) a couple gets married or enters into a civil partnership. These written contracts outline how assets and property will be split if a relationship ends in separation or divorce. Without a nuptial agreement, the starting point when splitting assets within a marriage or civil partnership is 50:50.

It is particularly important to sign a prenup or postnup if one or both members of the couple have significant assets, a large estate, children from a previous marriage, or are expecting to receive a large inheritance or distribution from a family trust.

The main difference between a prenup and a postnup is when it is drawn up.

What is a prenuptial agreement?

Prenup agreements are agreed upon before marriage or civil partnership. As a result, dividing the assets can be easier as assets often become mingled after couples marry or enter into a civil partnership, making it more difficult to separate them. A prenuptial agreement should be signed at least 28 days before the marriage.

Within a prenup, you’ll set out your individual assets at the time of your marriage or civil partnership. It will also detail precisely how your assets, including money, investments, and property, will be divided in the event of separation or divorce.

When writing this agreement, you will need to be honest about your finances. This can never be a bad thing. Money can be a major source of contention between couples, so setting out your assets allows both of you to find a balance.

It is important to seek advice from the right experts when writing a prenup, as such things as tax law can complicate the financial picture.

What is a postnuptial agreement?

A postnup is also a legal contract setting out how assets should be divided should a relationship break down. However, both parties sign it after marriage or entering into a civil partnership.

Are prenuptial and postnuptial agreements legally binding?

Unlike in the US, prenup and postnups are not legally binding in the UK. However, they do provide a strong foundation for negotiation during settlement if a marriage or civil partnership breaks down.

If a dispute over finances cannot be resolved through mediation, the nuptial agreement can be submitted as evidence in court for consideration. Thankfully, prenup and postnup agreements often prevent things from getting this far, enabling you to settle out of court.

Do I need a nuptial agreement?

You may think that you don’t have assets that are high value enough to warrant a prenuptial or postnuptial agreement, but remember that this can include items that are not just of financial value but sentimental, too. It is also hard to predict whether a relationship breakdown will be amicable or not.

These agreements are also becoming increasingly popular amongst those who are marrying or entering a civil partnership later in life, who may not have time to rebuild themselves financially in the wake of a divorce.

Try not to think about prenups or postnups in negative terms. Instead, consider your agreement as an insurance policy. By taking it out before you commit to marriage or a civil partnership, you’re securing yourself against a potentially messy, if not expensive, divorce.

How can nuptial agreements protect you?

• Finance and property: how much do you know about your other half’s finances? Couples often enter relationships not only with different incomes and savings but debts, too. Establishing who earns, owns, and owes what before marriage, in formal written terms, can create a clear guide to how assets and debts are split in the case of separation.
• Inheritance: if you are expecting to inherit over the course of your marriage or civil partnership, a prenup or postnup can define these assets, both financial and sentimental, as yours and yours alone. The nuptial agreement may not legally protect inheritance during a settlement, but clarifying in advance that it’s yours can build the foundations of a strong case when negotiation occurs.
• Second marriages and families: if you or your partner have been married before or there are children from a previous relationship, child maintenance fees may be involved. A prenup or postnup agreement can determine whose assets can be used to pay them.
• Business: if you own a business, this is an asset with a cash value, which means it could be divided as part of a divorce settlement and would benefit from being considered in your postnup or prenup.

What should a prenuptial or postnuptial agreement include?

Both agreements should include:

• The property you live in
• Inheritance and family trusts
• Child maintenance payments
• Savings, shares, and pensions
• Business assets
• Debts
• Personal and sentimental valuables

What can’t a prenup and postnup include?

Nuptial agreements can not include any custody agreements for current or future children. This is because what is best for children involved at a later date cannot be determined at the time of signing.

Can I amend a nuptial agreement at a later date?

It is wise to review prenups or postnups every few years to ensure they are relevant to any change in circumstance. If a prenuptial agreement needs to be altered once the couple is married or entered into a civil partnership, this will be replaced by a postnuptial agreement. Our specialist family solicitors can advise you on the best way of going about this.

How much does a nuptial agreement cost?

As with any legal matter, the cost to set up a prenuptial or postnuptial agreement will vary depending on the complexity of the case. Our family solicitors will be able to advise you on an estimated cost based on your circumstances, however, the cost usually ranges between £1,000 and £5,000.

Need advice on prenuptial or postnuptial agreements?

Our family law solicitors in Bristol and South Gloucestershire have a wealth of experience in advising on prenups, postnups, and other pre-marital matters.

If you’re not sure as to whether you need a prenup or postnup, our solicitors can tell you honestly whether you should consider one, and talk you through the pros and cons of entering into a nuptial agreement.

To speak to a family lawyer about your circumstances, call us on 0117 325 2929 or fill out our online enquiry form.