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Nuptial Agreements

It is not possible to enter into an agreement that prevents a court in England and Wales from exercising it’s powers on a divorce or dissolution of civil partnership.

However, in a leading case in 2010 the Supreme Court in England recognised that an agreement entered into before a marriage, and the same would apply to a civil partnership, may make provisions that are different from what a court would otherwise consider to be fair. It said that in those circumstances, the principle to be applied is that a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

Nuptial agreements can be made before or during a marriage or civil partnership and, if entered into in connection with a couples’ separation it is usually referred to as a separation agreement.

No one should enter into a pre-nuptial agreement and not expect to be held to its terms by a court in subsequent divorce or dissolution of civil partnership proceedings.

The court also said that a nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but respect should be given to the rights of individuals to make their own decisions and to the reasonable desire to make provision for existing property and that in the right case a nuptial agreement can have decisive or compelling weight.

Nuptial agreements are often entered into by couples who are financially independent or who have wealth that is inherited or from a previous relationship which they agree should be preserved for future generations.

In subsequent divorce or dissolution proceedings a court will still have to consider the factors set out in the Matrimonial Causes Act, so it is important to take advice as to how a court would view the settlement terms in a subsequent divorce or dissolution. First consideration remains the welfare of the children of the family. The court would almost certainly wish to see both parties reasonable needs met, in so far as this is possible.

Any agreement should also take into account a couples’ future plans, including whether they intend to have children, and whether the agreement should be reviewed after a period of time or in the light of a change of circumstances and what should happen to jointly acquired property.

For more information about nuptial and other family agreements, please contact one of our Family Law Specialists – call 01206 835320, email [email protected] or by using the enquiry form at the top of this page. It is usually possible for us to prepare a nuptial agreement or other family agreement for a fixed fee.

Living Together Agreements

With many people living together without getting married or entering into a civil partnership, living together agreements are becoming increasingly common.

A living together agreement, sometimes known as a cohabitation agreement, will usually set out the financial circumstances each party brings to the relationship, how they will deal with their financial circumstances while they live together and what should happen should they separate.

It is a myth that unmarried couples acquire a financial interest in the other’s property because they have lived together and have become a so-called “common law” husband or wife. For further information about financial matters for people who are not married use this link.

Financial claims between people who have lived together can be very complicated and expensive to resolve. Often there is a dispute about who said what and whether there was ever any intention to share in property that one party brought to the relationship. A properly drafted agreement entered into at the commencement of a relationship, setting out a couples’ financial circumstances and recording what their intentions are with regard to those circumstances has the potential to avoid future costly court proceedings.

Any agreement should take into account a couples’ future plans, including whether they intend to have children, and whether the agreement should be reviewed after a period of time or in the light of a change of circumstances and what should happen to jointly acquired property.

How We Can Help

For more information about living together and other family agreements, please contact one of our Family Law Specialists – call 01206 835320, email [email protected] or by using the enquiry form at the top of this page.

It may be possible for us to prepare a living together agreement or other family agreement for a fixed fee.

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