For couples planning a wedding or civil partnership there can be a 101 things to think about. Chocolate cake or vanilla? Pink silk or apricot taffeta bridesmaid frocks? Who will keep Auntie Jean away from the gin? To add anything else to the list may be more than a couple can bear. It can sometimes be late in the day therefore when a couple gets down to the more serious business of relationship planning.

In an earlier article, (‘Jet Set and Match: how the other half prenup’ 9 July 2021), I considered the operation of prenuptial agreements to try and limit marital claims upon divorce. For prenups to be of evidential weight in a divorce they should not be signed any later than 28 days before the ceremony. This is so that later allegations of duress or coercion to sign can be avoided. It is human nature, however, to leave things to the last minute. So what happens if a couple have not left themselves enough time to negotiate, draft and agree a prenup but still want to regularise their relationship in the event of divorce or dissolution?

The answer is to enter into a post-nuptial agreement. The requirements and operation of a post-nup are identical to a prenup. The single and obvious difference is that a post-nup is entered into after the ceremony rather than before. There are both pros and cons to this:

1. Post-nups give a couple the luxury of time. Post-nups do not need to be rushed into because the ceremony is behind the couple and so there are no pressing time constraints. Proper consideration and negotiation can lead to a thoughtful and inclusive agreement. Not all prenups are rushed, but I have yet to do one at a pace slower than Formula 1 and this inevitably leads to tough compromises.
2. Post-nups can be a gamble. From the point a couple enter into a marriage or civil partnership they become entitled to statutory claims against one another for income, capital, property and pension in life and on death. A couple choosing to wait to do a post-nup must be confident that both will sign the document. It is not unheard of for one-half of the couple (usually the financially weaker) to feel less incentivised after the ceremony. This of course leaves statutory claims wide open and puts a financially weaker person in a much stronger legal position. It also leaves the other person faced with the invidious decision to continue the relationship or divorce/dissolve it at the earliest point (12 months) to limit further financial claims.
3. Post-nups can be entered into at any point, even years after the ceremony, and can serve multiple purposes. They can be used to bring a couple back together after a bumpy patch to restore faith and future-proof. If a couple want a fresh start but recognise that the relationship is not problem-free, a post-nup offers control for both in the event of later separation. Alternatively, post-nups can regularise the sharing (or not) of unexpected financial windfalls, or, separation of liability for individual debt.
4. Like prenups, post-nups are not yet legally binding but are of evidential value when done correctly. Post-nups are not as common as prenups. I suspect this may be because most couples wanting to regularise their relationship choose prenups to get clarity on asset division before they are legally committed to one another. For a small few, relying on their other half to enter into a post-nup after the ceremony is a leap of faith too far.
5. Post-nups, as with prenups, can be complimented by other legal documents and actions. Assets should be kept separate, as merging them can blur later division lines. The couple should think about making Wills that reflect the separation of assets. If joint property is purchased during the relationship, it is sensible to own as tenants in common with a declaration of trust clarifying proportionate contribution and how equity is intended to be shared. This continues the ethos of the post-nup. The more a couple bolsters the content of a post-nup with practical examples, the more persuasive its content may later be in the event of separation.

Post-nups can serve a number of purposes and offer the opportunity to regularise a marriage or civil partnership throughout its length. Post-nups can also ease the stress of wedding or civil partnership planning, as the work can be moved to the other side of the ceremony. Post-nups leave the couple with a free mind to enjoy the formal celebration of their commitment to each other without pressure of time to negotiate any last minute disagreements. And Auntie Jean is free to sneak a sip or five.