December 10, 2015

Post-nup – just the job for ‘working girl’ and ex

By Peter Jones, founder

The ending of another celebrity marriage has again signalled the importance and value of a post-nuptial agreement if you wish to avoid future uncertainty about sorting out assets and property.

Details of the final divorce agreement between international firm star Antonio Banderas and Melanie Griffith, whose career skyrocketed following the 1988 box office hit Working Girl, revealed that the couple opted for a post-nup in 2004, eight years after they married – having kept their finances and assets separate until then.

The increase in couples living everyday lives and taking out such agreements reinforce that they are particularly useful if there have been changes to your situation since marriage – or if you have been married before.

Post-nups are similar to pre-nups in that they set out how assets will be divided should couples separate or divorce – except they can be signed any time after marriage and are increasingly popular with older couples in second or third marriages who may have dependent children – or who have brought property or assets to the union.

Below are some of the most common questions we get asked about post-nups:

How does a post-nup work?

For a post-nup agreement to carry its full weight, both parties must enter into it of their own free will: fully informed of its implications and without undue influence or pressure.
Legal advice and disclosure are desirable, but what matters is that both parties are fully aware of its implications and have the information necessary to make an informed decision. It follows that duress, fraud or misrepresentations are potentially vitiating factors.

The couple’s circumstances at the time of the agreement – including age, maturity and whether either or both had previously been married or in long-term relationships – are also relevant.

Why would you need a post-nup? 

There may be problems in the marriage and although both parties wish to maintain the relationship, they feel that their finances need to be regularised in the event the marriage flounders. They are also often drawn up by parties to a second marriage who are seeking to protect the children of a previous relationship, or by people who wanted a pre-nup but didn’t have time, or for some other reason felt it inappropriate to arrange one before the marriage.

What issues/assets do you need to consider?

Any issue that might be considered and dealt with upon divorce should be addressed as part of a post-nup agreement, including arrangements for any children of the parties, income, property, pension, savings and investments.

Can you get a post-nup at any time?

A post nup can only be entered into once a marriage has taken place, but there is no time limit thereafter regarding when it can be requested – it could be years later, as in the case of Melanie Griffith and Antonio Banderas.

Are they legally binding?

Not as such, but they are increasingly being taken into account by the courts in the event of a dispute.

How much do they cost?

It depends upon the complexity of the family’s finances – but they are intended to ensure that costs incurred upon divorce are dramatically reduced by avoiding contested and protracted court proceedings.

Cost depends on wide-ranging factors such as complexity of agreement, investigations which need to be undertaken in terms of what the assets are etc., how many drafts and amendments to the agreement which might be needed.

Are there any downsides?

Post-nups are not all encompassing as it can be difficult to plan for all possible outcomes. They are also far from romantic, and although both parties may agree to the post-nup, often it is led by one of them, or the family of one of them, which can cause tension and upset and may ultimately impact negatively upon the relationship.

Because the agreements are not legally binding, in the event of a dispute, the court can use its powers to vary a ‘post-nuptial settlement’ by amending the original terms of the agreement or rendering them obsolete.

If you have any comments, queries or concerns on post nups or divorce related issues, leave a comment below, call the team at Jones Myers on 0113 246 0055 or tweet us on @helpwithdivorce.