Post-nuptial Agreements in England & Wales: A Practical Guide | LegalDocuments.co.uk

What this document is

A post-nuptial agreement is a private contract signed by two people who are already married to each other. Its purpose is to record, in advance, how they would like their finances handled if they ever separated or divorced. That can include who keeps which property, how joint assets would be split, whether spousal maintenance would be paid, and how debts would be allocated.

Unlike in some countries, post-nuptial agreements are not automatically binding in England & Wales. The family courts retain the final say over financial matters on divorce under the Matrimonial Causes Act 1973. However, since the Supreme Court's decision in Radmacher v Granatino (2010), the courts have given real weight to nuptial agreements where both parties entered into them freely, with a full understanding of the implications, and where holding them to the agreement would not be unfair.

In practice, that means a carefully prepared post-nuptial agreement is far from worthless, it is often highly influential, particularly where there are no children and both spouses had independent legal input before signing.

How to use this document

1. Talk it through together first. Before any paperwork is drafted, both spouses need to have a frank conversation about why an agreement is being considered and what it should cover. Agreements that come as a surprise, or that one spouse feels pressured into, are the most likely to be challenged later. Openness at this stage sets the tone for everything that follows.
2. Disclose finances fully and honestly. Each spouse should exchange a complete picture of what they own and owe, property, pensions, savings, investments, business interests, and liabilities. Without proper financial disclosure on both sides, a court is far more likely to set the agreement aside later. Supporting statements and valuations should be attached as schedules.
3. Agree what the document should actually cover. Decide together how pre-marital assets, marital assets, inheritances, gifts, the family home, pensions, and any business interests should be treated. Think about whether spousal maintenance would apply, for how long, and in what circumstances. Clarity now prevents arguments later if the marriage ends.
4. Take independent legal advice, separately. Each spouse should instruct their own solicitor to advise them on the terms before signing. Shared lawyers, or one spouse going unadvised, is a well-known reason agreements get less weight in court. Independent advice demonstrates that each party understood what they were agreeing to and signed willingly.
5. Sign, date, and store it properly. Once both parties are satisfied, the agreement should be signed, dated, and ideally witnessed. Keep the original somewhere safe and give a copy to each spouse. It is also sensible to review the agreement every few years or after major life events, a new child, a house purchase, a business sale, because circumstances that made the terms fair at the time can shift.