The author of this article, a lawyer with focus on resolving complex financial issues in family relationships, says post-nuptial agreements aren’t just trending – they’re transforming the way couples plan their future.

The following article on marital law matters comes from Natalie Lemonides, a partner in the family team at RWK Goodman. The editors are pleased to share this content; the usual editorial disclaimers apply. To comment, email tom.burroughes@wealthbriefing.com and amanda.cheesley@clearviewpublishing.com 

Post-nuptial agreements aren’t just trending – they’re transforming the way couples plan their future. Our family team has seen a 40 per cent increase in post-nuptial agreement instructions since 2023, a clear sign that more spouses are prioritising transparency, clarity, and long-term stability in their financial arrangements. 

What is a post-nuptial agreement?
A post-nuptial agreement is a written contract made between spouses (after they marry or enter into a civil partnership), which sets out how their assets would be divided if they later separate, divorce or apply for a dissolution. Key reasons for entering into a post-nuptial agreement include protecting assets owned prior or acquired during the marriage or civil partnership, inheritance, or family wealth and business interests. Increasingly, we are advising older couples who want to ring-fence assets for children from previous relationships. Post-nuptial agreements can also clarify who is responsible for debts and liabilities.

The difference between a pre-nuptial agreement and a post-nuptial agreement is timing: as the name suggests, a pre-nuptial agreement is entered into before the wedding or partnership, while a post-nuptial agreement is organised after the marriage. This can be very soon after or many years later.

In England, post-nuptial agreements are not automatically binding, but courts are increasingly willing to uphold them if they meet certain criteria. This includes fairness, full financial disclosure, [ensuring] that each person received independent legal advice, and that neither person was put under undue pressure to enter into the agreement.

Why are post-nuptial agreements trending?
As we have seen, post-nuptial agreements provide couples with clarity and some autonomy on how their assets will be distributed on separation. 

With the Office for National Statistics recording that 42 per cent of marriages are expected to end in divorce, it is no wonder that nuptial agreements (pre and post) are an increasingly popular tool for couples seeking to clarify how their assets will be distributed should their relationship break down. As well as providing autonomy on this distribution, these agreements can also reduce acrimony on separation/divorce and legal costs because many of the key issues have already been agreed. 

Often couples will choose to enter post-nuptial agreements in response to a change in their circumstances, such as either spouse receiving inheritance or because they decide to sell a family business. Interestingly, as a family team, we are seeing more instructions from couples who have experienced a difficult period in their relationship such as infidelity, gambling, or other addictions and seek to reconcile. They reconcile on the understanding that a post-nuptial agreement will be in place. This is often instigated by the financially weaker spouse who seeks financial security if the reconciliation does not last. We are also seeing more enquiries from people relocating to and from England. This is because mirror nuptial agreements must be organised when a couple moves jurisdictions or when they have assets in multiple jurisdictions.
 
While post-nuptial agreements can be organised at any time after a marriage, we often see couples choosing such agreements over a pre-nuptial agreement because the period leading up to the ceremony can be stressful. Couples may also feel that discussing the terms before the wedding could be unromantic, so may prefer to wait. In other cases, a post-nuptial agreement can be prompted by a significant monetary gift from one party’s family which they wish to ring-fence and keep on their side of the family. Another issue is that pre-nuptial agreements should ideally be entered into at least 28 days before the wedding, so preparing an agreement after the ceremony when there are no time constraints can be very attractive. 

There is a false misconception that pre- and post-nuptial agreements are only for the uber wealthy. This is not true. With divorce rates rising, many couples are understandably conscious of the potential cost and stress of resolving financial matters if they separate. Disputes can quickly become expensive, emotionally draining and time-consuming, especially given the delays currently affecting the family courts. A well-drafted post-nuptial (or pre-nuptial) agreement can significantly reduce the risk of future conflict by setting out clear expectations from the outset. In many cases, this helps couples avoid protracted court proceedings altogether. Understandably, this is appealing to HNWs but also to couples of more moderate means.

What to consider when drafting a post-nuptial agreement
When drafting a post-nuptial agreement, it is important to consider the implications carefully. As we have seen, while they are not legally binding, post-nuptials can carry weight in court if properly drafted and the correct criteria are met. But if an agreement is found to be unfair, it will generally be disregarded by the court.

Over the last five years, the courts have increasingly upheld post-nuptial agreements. This trend should offer reassurance to clients who are keen to ring-fence certain assets. It also highlights the importance of reviewing and updating agreements as situations change. 

As an advisor, I would always encourage married [couples]/those in a civil partnership to consider post-nuptial agreements whenever a significant change is on the horizon or when a pre-nuptial agreement was not entered into. Taking this step can protect both parties, provide clarity and reduce the risk of lengthy and costly disputes should the relationship break down.

Natalie Lemonides

The author specialises in all aspects of the breakdown of family relationships, with a particular focus on resolving complex financial issues for high net worth and ultra-high net worth individuals.