Lawyers are seeing increasing numbers of couples signing post-nuptial agreements as they seek to ring fence their inheritance in the event of a divorce.
London law firm Osbornes Law is seeing a growing number of enquiries from in those in their late forties to sixties who are married or in civil partnerships, have recently inherited money from their parents, or expect to in the near future.
Like the better known pre-nuptial agreement, a post-nuptial agreement sets out a couple’s financial arrangements should the marriage break down. It can be entered into at any point during a marriage, either to vary a pre-nup or as an agreement in its own right.
Osbornes Law family law partner Joanne Wescott says, “Growing numbers of couples with elderly parents are coming to us to try and ringfence their potential inheritance or protect gifts, usually involving a significant sum of money.
“Though happily married, both feel the inheritance should not be split equally if they divorce. Whilst inherited wealth is not automatically treated as a matrimonial asset to be split 50/50, a post-nup gives couples more certainty about how it will be treated by the courts. Ultimately the courts still have the power to decide but will generally take account of a post-nup when considering distribution.
“Often the spouse who is inheriting wants to use the money to pay off the joint mortgage on the family home or perhaps buy an investment property. They want to be able to do this without the risk they could lose that investment if they separate down the line.”
This trend is in line with a general move towards inheritance tax planning which is seeing elderly parents gift money to their married children. Couples who wouldn’t have contemplated a pre-nup when they got married, find themselves in circumstances where there has been a capital injection to one party during the marriage. Now, with wealth that did not exist before, a post-nup becomes a useful option.
Joanne says, “For those who have seen their financial circumstances change significantly over the course of their marriage, a post-nup can bring peace of mind.
“Whilst it may be a difficult conversation to have with your other half, my experience is that couples tend to be in agreement about inheritances and gifts from family, especially if it goes on to benefit the children of the marriage.
“I have also advised clients whose marriage is a little rocky, with both partners anxious about what would happen to their finances in the event of a divorce. By agreeing the terms of a post-nup, these concerns and insecurities are taken out of the equation, leaving the couple free to focus on their relationship.”
A court will take account of a post-nup where each spouse has entered into it freely, understanding what it means. There will need to have been full financial disclosure, with both sides taking independent legal advice. A post-nup does not oust the judge’s decision making as they are not legally binding, but they are persuasive and courts will follow them.
