Pre-nuptial and cohabitation agreements
Agreeing who is entitled to what before things go wrong significantly reduces the stress of a marriage breakdown, helping secure the financial futures of both parties. Increasingly the Courts accept that it is far better for a couple to take control of their financial as well as personal situation in advance of getting married or entering into a new relationship. Greater weight is therefore being given to Pre and Post Nuptial Agreements as well as Cohabitation Agreements.
Pre and Post-Nuptial Agreements
The Family Court is now more prepared to uphold Pre-Nuptial Agreements entered into before marriage. So long as these are entered into fairly with safeguards for both parties they are now usually accepted as enforceable on a subsequent divorce. There has been a big change in this in recent years.
Pre-Nuptial Agreements are not just for the rich and famous. It is becoming more common for individuals to receive inherited wealth and to marry later in life – or to have a second or third marriage. Very often a couple getting married will not have the same amount of assets and may want to “ring fence” previously owned monies or investments to avoid the possibility on a divorce taking place of those assets being divided. The Pre-Nuptial Agreement will set out what the couple agree should be the financial settlement if they have a divorce in the future.
Entering into a Pre-Nuptial Agreement can be an emotive subject. However, they are now becoming much more common place and for many people have become part of the wedding planning “to do list”. Pressure can also be exerted by parents who have given money or property to children expecting them to enter into a Pre-Nuptial Agreement to preserve that money or property should the marriage not work out. Parents do not always trust their children to make the right decisions in their relationships!
So long as the Pre-Nuptial Agreement is basically fair at the time, both of the couple have received legal advice with full financial information being provided and the Agreement is not completed too close to the marriage it is likely (but not guaranteed) that a Pre-Nuptial Agreement will be upheld subsequently. Legislation is being considered to give a legal foundation for Pre-Nuptial Agreements but in the meantime it is vital that early legal advice is taken.
Similar to a Pre-Nuptial Agreement is one that is entered into after marriage. The Courts have always been more prepared to uphold such an agreement. Again safeguards need to be present and they can also be an emotive subject. Post-Nuptial Agreements can be used to safeguard assets especially preserving businesses that might otherwise be put in jeopardy on a marriage breakdown. Like Pre-Nuptial Agreements they can set out what the couple agree should be the financial arrangements if there is a divorce in the future.
The biggest myth in English law is that by living together you acquire rights as “a common law husband or wife”. This is completely untrue but for many people they only discover this on the death of one of the couple or on the relationship breaking down.
Cohabitation Agreements are written contracts that set out the respective rights and responsibilities of a couple that are cohabiting but not getting married. This is particularly important when property is bought and consideration needs to be given as to the respective shares each of the couple have in the property. Nobody expects their relationship or marriage to breakup but they do. Taking legal advice and entering into a Cohabitation Agreement for many people is vital – just in case!