Most people have heard of a prenuptial agreement (prenup), but less have heard of her little brother the postnuptial agreement (postnup).
A postnup is signed after the wedding, and very much like a prenup, sets out the couple’s intentions as to what will happen to their their assets if they separate at a later date. Like prenups they should be entered into freely, couples should have the benefit of independent legal advice and both parties should have a clear idea of the marital assets before any agreement is signed. Advice should be taken to check they meet the necessary criteria, but the question is are we losing sight of romance and frankly why the increase in postnups now?
No one can deny a postnup is a practical proposition, but being prepared doesn’t have to be at the exclusion of romance. There is the story of the newlyweds signing their postnup at the wedding – straight after cutting the cake – to the cheers of their guests. That might be a step too far for some, but couples agreeing a postnup might well be saving themselves a lot of unnecessary heartache and expense further down the line. Neither of which are very romantic!
Many of the couples we advise in our practice about prenups have separated and then reconciled. On reconciliation, they have decided that they want to agree what would happen to assets if they separate again and this time there is no way back.
They have seen the reality of how hard it is to make decisions when they are contemplating separation and how difficult it can be to think clearly when one or both is hurt and angry. They are savvy enough to realise that things can go wrong, and it is better to reach an agreement while they are enjoying the best of times, than wait until they are going through the worst of times.
Some couples have simply seen friends and family go through a breakup and have watched a seemingly happy couple embark on a long process of disagreement and litigation. They recognise that they never want to be in that place and take steps to ensure that they will avoid that fate.
Many couples find themselves in a very different position to the one they were in when they married. Postnups have only become a significant part of the legal landscape in recent years. They may not have been an option when some couples married, but now that that they are an option, those couples are having that conversation.
Talking of that conversation, some couples find it difficult to broach the subject of a prenup before the wedding, there is a lot to plan, it is an easy conversation to avoid and it didn’t come up. Once time has passed they may be able to bring the subject of long term financial planning up and a postnup might be part of the answer.
There is a growing trend for parents to ask their children consider a postnup. If a parent of adult children wants to ensure their wealth is left to their children and grandchildren, and not their daughter or son in-law, then they might consider asking their children to agree a postnup as a condition of naming them as a beneficiary in their will.
Another reason couples consider a postnup is that either one or both of them have been married before and they have either been through a difficult divorce, or they want to make sure their existing children benefit from their estate. It is a practical solution to a problem that otherwise might cause worry and stress.
The overwhelming theme is one whereby couples have agreed that taking practical steps before separation provides both with security. The courts are increasingly recognising prenups and postnups as long as certain conditions are met and that seems to me to be the reason for the increased uptake. Good reasons for a postnup were always there, it is perhaps just that increasing certainly as to their validity is responsible for the rise.
Is it the end of romance? I don’t think romance will ever be out of date- taking control of your life and your future can be liberating and allows you to enjoy the moment – the romance can follow from there.
Louise Allard is a postnuptial agreement solicitor and Director of Allard Bailey Family Law, a niche family law firm based in the heart of the legal district in London. To contact Louise, visit here.