Family Solicitors In Southend-on-Sea, Essex
Pre-nuptial Agreements and Co-habitation Agreements
Pre-nuptial agreements -what they are and why may I want one?
These agreements set out how the couple wish to deal with their assets such as property, money and finances during their relationship and also in the event that the relationship breaks down. They are signed before getting married or entering a civil partnership. There are various reasons for signing one of these agreements. For example, it may be because the parties are going to enter a second marriage and do not want to disinherit children from a previous relationship or to protect assets they may have inherited. There may also be other items the parties wish to protect or generally to reduce any disputes if the relationship breakdown.
Post-nuptial agreements work similarly to pre-nuptial agreements except they are entered into after a marriage or civil partnership has taken place.
Are pre-nuptial agreements legally binding?
In England and Wales pre-nuptial agreements are not legally binding. A court does not legally have to uphold them. But the court is likely to follow them providing certain steps have been taken before entering into these agreements, for example:
- There must be an intention that they shall be binding.
- The agreement must be fair
- The agreement must meet the parties’ needs after divorce or dissolution
- The agreement shall be correctly witnessed
- They need to have been entered into willingly no less than one month before the marriage or civil partnership
- Both parties will need to provide one another with full disclosure of their financial circumstances, assets income and liabilities.
- Both parties will need to seek independent legal advice.
- The terms of the pre-nuptial agreement will need to be re-considered each time there is a change in the parties’ circumstances such as but not limited to the birth of a child.
Co-habitation disputes/Co-habitation agreements – how do they work?
When two unmarried people live together there is currently very little law setting out the rights of the parties to make a claim against the other’s assets or income. It generally boils down to who owns what. There is no legal right for one party to claim maintenance payments against the other for themselves for example. In relation to property then the law has to determine who has an interest. If the property is registered in the sole name of one of the parties, it may have been their property in the first place. The law will have to determine whether the other party has acquired a beneficial interest under a trust. In other words, have they acquired an interest by reason of certain contributions such as payments towards the mortgage or substantial improvements to the family home.
To avoid these uncertainties, the parties may wish to enter into a co-habitation agreement before they commence living together. That way both of them know where they stand financially if the relationship does break down.
