Pre-Nuptial, Post-Nuptial & Cohabitation AgreementsSarah Longley
In this article, we take a look at Pre and Post-Nuptial Agreements, whilst also considering Cohabitation Agreements. Read on for more information to help guide your decision to find the best option for your circumstances.
More frequently nowadays, couples who are intending to get married consider entering into a Pre-Nuptial agreement in advance of the marriage. This is usually the case where one party will be entering the marriage with more assets than the other and they are looking to protect those assets should the marriage breakdown, but also where one party wishes to protect possible future inheritance. A Pre-Nuptial agreement sets out how those assets are to be retained or distributed in the event of a relationship breakdown, and whilst historically it was something only considered by the wealthy, increasingly it is something which is seen as an attractive option to give more peace of mind that your assets could be protected.
The key point to bear in mind is that a Pre-Nuptial agreement is not legally binding in English law. That said, they are growing in popularity and the Judiciary are more willing to attach weight to them in certain circumstances, provided they have been properly drawn up and executed.
The agreement itself needs to set out full details of the relevant parties and additionally all property needs to be identified together with any matters of particular significance that may not be immediately obvious. Reference should be made to any children of the family and an explanation as to how they would be provided for. It is also vital for the agreement to include review dates in the event of a particular change, for instance the birth of a child, or other significant change in circumstances.
The most important requirements to remember about a Pre-Nuptial agreement are that they should be prepared in good time before the wedding, with a minimum of 21 days before the intended wedding date although ideally significantly longer. This is especially relevant in the event the agreement is complex, or wider aspects are to be considered. The document should be drafted clearly, and so that parties intentions are clear with careful attention paid to all dates and terms. Both parties should have fully and frankly disclosed to each other details of their financial circumstances, and both parties should have received competent and independent legal advice.
Provided these requirements have been addressed then there is some suggestion that if one party ever did have to rely on the agreement, then the Court would attach weight to it. It is however still the case that each situation will be decided on its own merits, and the Court would give due consideration to the fairness of the agreement in all circumstances.
If parties are already married but wish to put in place an agreement which sets out the above, then they should think about entering into a Post-Nuptial Agreement. The considerations are the same as those mentioned above, with the difference being the agreement is only drawn up after the marriage has already taken place.
But what if you are not intending to get married and yet still wish to regulate the terms of your relationship? This may be because you are thinking about marriage at some point in the future but not considering a date at this stage, or alternatively are simply looking to establish the basis of a change in your relationship.
Unmarried couples do not have the same rights as married couples, even if they have lived together for many years and therefore one way to establish financial and other arrangements such as childcare, is to enter into a Cohabitation agreement.
There is presently little Judicial guidance regarding Cohabitation agreements, however it is suggested that it may follow the same consideration as a Pre-Nuptial agreement should its content need to be relied on. In largely the same way therefore, the document should set out relevant information such as full details of the parties and any children, and any other matters of particular significance which may not be immediately obvious. Both parties should exchange full and frank information with each other about their own financial circumstances so that they are aware of each other’s position, and both should take independent legal advice on the intended agreement. Should the parties wish, they could include what provision they intend to make for each other in their respective Wills, and as before, the agreement should be reviewed on the birth of any child or if the parties circumstances change significantly. As with all legal documents, the contents should remain confidential other than between the concerned parties and their legal representatives.
In addition to a Cohabitation agreement, a Deed of Trust in relation to any property may also be considered, with this being where one party is the sole legal owner and the other partner has an equitable interest or where both parties are joint legal owners.
One important point to note is that a Cohabitation Agreement becomes void upon marriage and therefore due consideration must be given to this in the event you later decide to formalise your relationship. At that point, should you still wish to regulate the terms of your relationship, then it may be necessary to consider a Pre-Nuptial agreement, with the relevant requirements as set out above.
Whether you’re thinking about a pre-nuptial agreement or considering your options for you and your partner, Tinsdills Solicitors can assist with the necessary legal arrangements. Contact our team today: 01782 652300