Marriage is built on trust, love, and mutual respect, but as life evolves, so too can the dynamics of a relationship. For some couples, this may lead to conversations about a postnuptial agreement —a legal document outlining how assets and responsibilities will be divided in the event of separation or divorce. But is it fair for one partner to request a postnuptial agreement after several years of marriage?

What is a Postnuptial Agreement?

A postnuptial agreement is similar to a prenuptial agreement, but it is entered into after a couple is already married. This legally binding contract can set out how assets, debts, property, and financial responsibilities will be handled if the marriage ends.

In Scotland, postnuptial agreements are enforceable, provided they are fair and entered into voluntarily, with both parties having a clear understanding of their legal rights.

Why Might a Postnuptial Agreement Be Requested?

There are several reasons why one spouse might request a postnuptial agreement after years of marriage, and they don’t always stem from mistrust or pessimism. Here are some common scenarios where a postnuptial agreement may be brought up:

1. Inheritance or Significant Financial Changes: If one spouse receives a large inheritance, acquires a business, or experiences a substantial change in financial circumstances, they may want to protect these assets with a postnuptial agreement.

2. Financial Imbalances: Over time, the financial dynamics in a marriage can shift. One partner may feel that their contributions (financial or otherwise) are not adequately reflected, and a postnuptial agreement can address these imbalances.

3. Business Ownership: If one spouse owns or starts a business during the marriage, a postnuptial agreement can help protect the business in case of divorce, ensuring its continuation without legal complications.

4. Debt Protection: If one partner accrues significant debt during the marriage, a postnuptial agreement can protect the other spouse from being held liable for that debt in the event of a separation.

5. Rebuilding Trust: In some cases, postnuptial agreements are used to restore trust after marital issues such as infidelity. A spouse may request a postnuptial agreement to feel more secure about their financial future, should the marriage fail to recover.

Is It Fair to Request a Postnuptial Agreement After Several Years of Marriage?

The question of fairness depends on the context and the manner in which the request is made. Here are some key points to consider:

1. Motivation Matters

If the request for a postnuptial agreement is made with clear and reasonable intentions—such as to protect future assets, address changing financial circumstances, or safeguard a business—it can be seen as a pragmatic and responsible step. However, if the request feels sudden, or comes after a significant marital conflict, it may cause feelings of insecurity or distrust.

It’s important that both spouses understand the motivations behind the request and feel comfortable discussing it openly.

2. Equal Involvement

A postnuptial agreement is most effective when both spouses are involved in its creation. It should not feel like one spouse is imposing their will on the other. Both parties need to have a clear understanding of their legal rights and should seek independent legal advice. This ensures that the agreement is fair and that both partners are entering into it voluntarily, without pressure or coercion.

3. Transparency and Communication

Requesting a postnuptial agreement can feel uncomfortable for the spouse on the receiving end, as it may seem like an indication of mistrust or doubt in the marriage. To avoid misunderstandings, it’s crucial to have open and honest communication. Explain why the agreement is being proposed and listen to your spouse’s concerns. Being transparent about your motivations and discussing how it will benefit both parties can go a long way in maintaining trust.

4. Balancing Legal and Emotional Concerns

While a postnuptial agreement is primarily a legal document, it’s also tied to deeply emotional issues, particularly the notion of commitment. One spouse may see it as a necessary safeguard, while the other may feel it undermines the emotional foundation of the marriage. Balancing the legal and emotional aspects is essential in ensuring that both spouses feel respected and heard.

Both parties should seek independent legal advice to ensure the agreement is fair and legally sound. A family law solicitor can guide you through the process and help tailor the agreement to meet your specific needs.

How Can Johnson Legal Family Law Help Me?

If you are considering entering into a pre-nup or post-nup with your partner, don’t hesitate to reach out to us for support. Our team of experienced Edinburgh family lawyers can provide the guidance and support you need.

We offer all our clients a free, 15-minute consultation call with one of our Edinburgh solicitors to determine how we can help. Call our office on 0131 622 8477 email [email protected] or submit your enquiry here.