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Family Law

Prenuptial or Cohabitation Agreements

Jacqueline Major
Jacqueline Major
Partner
Bharti Shah
Bharti Shah
Partner
Vanessa Friend
Vanessa Friend
Partner
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Sarah Harding
Partner
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Abigail Neal
Paralegal
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Priyanthi Mohanakumar
Paralegal
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Emily McNally
Trainee

We fully understand just how important these agreements can be and we'll use our expertise to provide a bespoke agreement that fully meets every couple’s specific needs.

Whilst marital agreements (pre-nuptial or post-nuptial) aren’t legally binding in England & Wales, they often prove invaluable. If a relationship does break down, a court will consider any marital agreement when determining distribution of the assets, provided that it’s correctly drafted and both parties entered the agreement voluntarily.

Our specialist family lawyers have over four decades of experience in drafting pre-nuptial and cohabitation agreements. We can advise you and draft the document for you, avoiding any legal pitfalls.

Prenuptial agreements

Pre-nuptial agreements are commonly known as “Prenups”. A pre-nuptial agreement is never made with the intention of separating or getting divorced. They’re viewed as a responsible act before marriage and their use is becoming more widespread.

Should the relationship come to an end, a pre-nuptial agreement can have a significant influence on financial provision. Our legal team recognise that the negotiation and preparation of pre-nuptial agreements needs to be carefully and sensitively handled. Our experienced lawyers ensure a smooth, stress-free process for you and your partner.

"Sarah's support and unerring level of professionalism, really did provide me with a level of confidence and a direction that eventually achieved an outcome that both parties were able to agree to."

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Cohabitation agreements

A cohabitation agreement enables you and your 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 ever 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 unfair results. Entering a cohabitation agreement prevents this and avoids the need to go to court in the future. Cohabitation agreements are particularly important for those in relationships who buy property together and who have children.

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Who should enter a pre-marital agreement?

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

  • You and your partner have unequal levels of wealth
  • There are significant inheritance prospects or one of you may benefit from gifts from their family
  • There’s the potential for future wealth such as trust funds
  • There are assets acquired before the marriage that one of you wants to ring fence
  • Second (or more) marriages where one of you has assets and/or children from the first marriage
  • There are family businesses
  • There are existing debts
  • You’ve 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.

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Are pre-nuptial agreements legally binding?

Marital agreements aren’t legally binding in England & Wales. However, if properly drafted, they can be fully taken into account by the court if your relationship were to fail. The court has the power 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 when 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 both you and your partner must be satisfied first
  • There can be compensation for any economic disadvantage suffered by you or your partner (this is 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 you and your partner

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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’s 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 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

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