Pre-Nuptial or Cohabitation Agreements

Our specialist family lawyers have been helping our clients for over four decades with various family matters including drafting pre-nuptial and cohabitation agreements, ensuring that all important details are covered and nothing has been missed.

Even though marital agreements (pre-nuptial or post-nuptial) are not legally binding in England & Wales, a court will consider any marital agreement when determining distribution of the assets, provided that both parties entered the agreement voluntarily.

For the agreement to be considered and upheld in a court we would recommend you seek the advice of an experienced family lawyer who will be able to advise and draft the document for you to avoid any legal pitfalls. Contact our specialist family lawyer today

Pre-Nuptial Agreements

Pre-nuptial agreements are commonly known as “Prenups”. A pre-nuptial agreement is never made with the intention of separating or getting divorced. It is viewed as a responsible act before marriage and is becoming more widespread. Should the marriage come to an end, such an agreement can have a significant influence on financial provision following the end of the relationship. We recognise that the negotiation and preparation of such agreements need to be carefully and sensitively handled. We will do our utmost to ensure a smooth, unacrimonious process for you.

Cohabitation Agreement

A cohabitation agreement enables you and you partner to formally record the terms of cohabitation including contributions to the purchase of property. A cohabitation agreement can regulate how the cohabitation is to work, and how contributions to outgoings, future contributions to property etc can be protected if you decide to separate.

Why should you consider a cohabitation agreement?

The law governing the finances and property rights of unmarried couples on separation is complex and often brings about surprising, and often seemingly unfair, results. You can take steps to avoid having to go to court on issues by entering a cohabitation agreement. These agreements are particularly important for those in relationships who buy property together and who have children.

We can advise you on the appropriate way forward and give you full details on how cohabitation agreements work.

Who should enter a pre-marital agreement?

We recommend a pre-marital agreement is entered into when:

  • The wealth of the parties is unequal
  • There are significant inheritance prospects or one person may benefit from gifts from their family
  • There is the potential for future wealth such as trust funds
  • There are assets that one party wants to ring fence which were acquired prior to marriage
  • Second (or more) marriages where a party has assets and/or children derived from the first marriage
  • There are family businesses
  • There are existing debts
  • The parties have had agreements drawn up in other jurisdictions, and need an identical agreement in England & Wales

The starting point on looking at financial provision in divorce is that all the assets are considered to be in the marital pot and available for distribution by the court.

If a pre-marital agreement is entered correctly, it can be an effective way of protecting assets acquired before the marriage, or expected in the future from one party’s family or endeavours.

Are pre-nuptial agreements legally binding?

A marital agreement is not legally binding in England & Wales however, if properly drafted, can be fully taken into account by the court if the relationship were to fail. The court has the power, and authority, to determine what a fair allocation of the assets of the marriage is in the event of financial proceedings. Recent case law has upheld pre-marital agreements completely if they have met certain requirements:

  • Financial and domestic contributions should be treated equally
  • The “yardstick of equality” (equal sharing of marital assets) should always apply unless there is good reason to depart from it
  • The needs of the parties must be satisfied first
  • There can be compensation for any economic disadvantage suffered by a party (rare and hard to prove)
  • If there is sufficient money to meet needs and any compensation then the principle of sharing applies
  • The overall aim is fairness to both parties

Download our Guide to Premarital Agreements 

Frequently asked questions

Are pre-nuptial agreements legally binding in England?

Pre-nuptial agreements aren’t legally binding in the UK at the moment. But that’s not to say that they aren’t useful. A pre-nuptial agreement will still be taken into consideration in the event of divorce and can have a significant influence on the eventual settlement awarded.

What can be done to make the agreement more likely to be followed?

There are proposals by the Law Commission to introduce ‘qualifying nuptial agreements’ which they propose to be enforceable without the use of the court. Whilst these are not yet law, they are a helpful guide as to what needs to be done to
ensure the pre-nuptial agreement has the best chance of being upheld. The Law Commission’s suggested requirements are:

  • The agreement must be contractually valid and enforceable
  • It must be made by deed and must contain a statement signed by both parties that they understand that the agreement will partially remove the court’s discretion to make financial Orders
  • It must not be made within 28 days of the marriage or civil partnership
  • There must be disclosure of material information about the other party’s financial situation
  • Both parties must have received independent legal advice at the time the agreement was formed

Will our pre-nuptial agreement be valid if there was change in circumstances?

A pre-marital agreement can last for the length of the marriage, however if there is a change in circumstances, it is less likely that a court will enforce the agreement. A change in circumstances can include:

  • The arrival of children
  • Unexpected windfall or loss
  • Loss of employment
  • Health problems

A pre-nuptial agreement should demonstrate what you, and your partner, consider to be a fair division of the assets should the relationship break down. An agreement can reduce the cost, both in terms of financial and emotional cost, of a divorce. A court will still need to approve the terms of any agreement after divorce but if the agreement is fair and meets the basic needs of a party, then the terms of the pre-marital agreement will be upheld.

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