What’s Mine is Yours? Maybe Not – the Rise of the Post Nuptial Agreement

For richer, for poorer, for better, for worse. We all know the words, and most of us have said them – sometimes more than once. One of the basic tenets of marriage has always been that as two become one, everything each person has is shared. But does that still hold true in the brave new world of 2018?

If you have read my previous articles on prenuptial, and even no-nuptial agreements, you will know that there is a growing trend for couples to take a slightly more scientific, and perhaps pragmatic, approach to the division of wealth than the traditional 50/50 split. While prenups have been around for plenty of years among the rich and famous, providing no end of fodder for the glossy society magazines, it is only in recent times that everyday people have started to consider them.

Taking the pre out of prenups

Of course, the point about prenups is that they are something you and your fiancé draw up together before you tie the knot, so that everyone knows where they stand. One of the reasons they have traditionally been largely of interest to the rich and famous is the argument that if you are not particularly wealthy, there’s very little to argue over, so the traditional 50/50 is just fine.

Of course, a prenup deals with more than just the division of wealth, it also sets out various other important things such as childcare and so on, but let’s set that aside for a moment. Suppose you decide not to bother with a prenup on the basis that you and your partner enter the marriage equally in terms of earnings, savings and so on. So you pool everything, and if things should go wrong, 50/50 is fair.

Now suppose one of you suddenly inherits half a million pounds from a wealthy relative. It happens all the time. Is it too late to do anything about it? Welcome to the world of the post-nup.

Post nups on the rise

Lawyers on both sides of the pond are reporting that post nups are increasing dramatically in popularity. As the name suggests, it is essentially the same as a prenup, except it is entered into after marriage. It has the same weight in a divorce court as a prenup, provided it was entered into knowingly and willingly by both parties, and has been professionally drawn up, signed and witnessed.

Why the increase? Let’s face it, rich uncles have been dying and leaving legacies since time immemorial, so that is hardly a new development. Perhaps one part of the reason is the more fragmented and complex nature of families today. Let’s look at an example.

Suppose you married your husband without a prenup. You and he have a child together, and you also have two children from a previous relationship. You suddenly receive a large cash windfall, let’s say the wealthy uncle remembers you in his will. You might want to ensure that your two older children will get a proportionate share of those funds.

There have been other examples where an outside party insists on the post nup. This story comes from across the pond, but something similar could easily happen here. A wealthy property developer decided to put most of his assets in the name of his married daughter – almost certainly to circumvent some tax liability. He then insisted that she get a post nup for fear that the son in law would divorce her and “walk out the door with his property.”

Is a post nup for you?

Discussing this sort of topic is never easy, as it involves admitting the possibility that your marriage might fail. But you can actually do so more calmly and pragmatically after marriage than in the emotionally-charged prenuptial times. Raise it as a general topic as part of your more general financial planning with your husband or wife.

If you would like some advice and support around creating either a prenuptial or post-nuptial agreement, our team of experts here at Hylton Potts who would be happy to help. Feel free to call us on 020 7381 8111, or get in touch via email at law@hylton-potts.com.

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