It’s a common misconception that a spouse or child of an individual has the authority to take over should someone become incapacitated. This is simply not the case. The person concerned must make a Lasting Power of Attorney (LPA) authorising one or more individuals (their “attorneys”) to make decisions for them. Without an LPA, those wishing to act must make a court application, which is both time consuming and expensive.

A Lasting Power of Attorney is a long-term measure, where a person wants family or others to make decisions for them in the future. There are two types and you can make one or both. A property & financial affairs LPA authorises the “attorney” to deal with money and assets: managing bank accounts, paying bills, collecting state benefits/pensions or selling the person’s home (e.g. if they move into a nursing home). It can be used before a person has lost mental capacity (with their consent), as well as afterwards. A health & welfare LPA authorises the “attorney” to take decisions about things like personal care, medical care, moving into a nursing home and life-sustaining treatment. It can only be used after a person has lost mental capacity.

The legal process for making a LPA is relatively straightforward. The trickier part is often persuading a person of the need to do this. You can only make an LPA if you have mental capacity to make decisions, so it must be made before suffering an illness or accident that leaves the person without mental capacity.

If an elderly relative is reluctant to make a LPA, these points might help to reassure them. After making it, they can make changes to it or cancel it as long as they still have mental capacity. The individual making the Lasting Power of Attorney is not relinquishing their rights to make decisions themselves so they can still continue to make decisions regarding their finances and health and welfare should they wish to do so.

Perhaps the most important point is to ensure the person concerned has plenty of opportunity to discuss their wishes with those they appoint as “attorneys”. If parents or other elderly relatives want you to act for them, find out as much as possible about their financial affairs and their wishes. Do they want to live at home for as long as possible, or move into a nursing home? If they need to fund care costs and have surplus assets, which assets do they want to draw on first, and are there any they would hope to keep so they can leave them to family or friends in their Will? In the event of serious illness, are there circumstances when they would not want to be resuscitated or would want life support withdrawn? The more they can tell you about their wishes, the more comfortable they may be in making a Lasting Power of Attorney and the easier it may be for you, if the time comes, to make decisions for them.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Events that can trigger the need to change your Will include:

1. You get married or enter a civil partnership. This automatically revokes any Will you made previously, unless it was made expressly in contemplation of marriage or civil partnership.
2. The birth of your child/children, and also when they reach the age of majority. Minor children (under 18) are unable to inherit absolutely. Your Will must provide for any inheritance to be held in trust until they are at least 18, or a later age of your choice. Once they have reached this age, you might want to review your Will.
3. Your relationship breaks down. From the date of divorce or dissolution of civil partnership, your Will is interpreted as if your former spouse/partner had predeceased you. However, if you separate without a divorce or dissolution of civil partnership, there is no such re-interpretation of your Will, and your spouse/partner could still benefit under it. In both cases, as a relationship breakdown often results in significant changes to your personal and financial circumstances, it is wise to review and update your Will.
4. You acquire new assets, or no longer own assets you had when you made your Will. This could be if you move house or receive an inheritance. If you inherit from your parents and want certain assets to be handed down the generations, you might need to amend your Will so they pass direct to your children, not to your spouse.
5. Change of employment if you become entitled to, or lose entitlement to, death in service benefit or other types of life insurance. This can be a significant sum. While it normally falls outside the terms of your Will, you may wish to take it into account as financial provision for your nominated beneficiary. This may affect how you wish to distribute your other assets.
6. Births, marriages/civil partnerships, deaths and other events that affect the financial circumstances of your (potential) beneficiaries. For example, your Will might provide equally for your children. If one of your children has a child with a disability or has fallen on hard times you may want to leave them a greater share of your assets. Your Will may need amending to provide for this.
7. Change of inheritance tax laws. If your estate exceeds the inheritance tax free allowance of £325,000 (as at 2017), inheritance tax planning could be important when preparing your Will. You may need advice from a solicitor on changes to the inheritance tax law and how revising your Will can mitigate inheritance tax. This is especially so if you relied on tax saving loopholes that have since been closed.
8. You have changed your mind as to the terms of your Will.

In any event, it is sensible to review your Will every five years, and seek legal advice on whether it needs amending to reflect your current circumstances and wishes. Many changes can be made by way of a supplemental document, known as a Codicil, which is usually quicker and more cost effective than redrafting your entire Will.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Each joint tenant owns the property in its entirety. A joint tenant cannot bequeath their share to someone else, as the whole property belongs to their co-owner. If one joint tenant dies, the other is automatically entitled to the entire property, irrespective of the terms of the deceased person’s Will.  Tenants in common each own a distinct share of the property, and can bequeath their share to someone else in their Will. They are presumed to have equal shares, unless there is evidence to the contrary. Tenants in common can choose to have unequal shares, for example to reflect the amount each contributed to the purchase price.

So if we’re tenants in common and I have the greater share, how can I protect my interest?
You need to ask a lawyer to draw up a legally enforceable document, called a Declaration of Trust, recording your respective shares and also how any increase or decrease in the value of the property is to be apportioned. Without this, you are presumed to own the property in equal shares. In some cases, you can challenge this presumption in court but it is a difficult, expensive process with no guarantee of success.

If our relationship breaks down, is my interest in the property protected?
It depends on your circumstances, including whether you are married/in a civil partnership or cohabiting. If there is, unfortunately, no future for your relationship, and if you own a property as joint tenants, it is usually advisable to switch straight away to tenants in common. All you need to do is give your former partner notice in writing that you are severing the joint tenancy. There’s no requirement for them to agree, or even acknowledge the notice. You will then own a distinct half share of the property (subject to mortgage, if any). If you died, your half share would pass under your Will or the intestacy rules (if you had no Will). It would not automatically go to your former partner. This gives you some protection in the interval between the relationship breaking down and you entering a separation agreement or finalising your divorce/dissolution of civil partnership.

In the longer term, do I get to keep my share in the property (or its sale proceeds)?
If one of you applies for a financial settlement in the context of divorce/dissolution of civil partnership proceedings, potentially all of your assets are put into the “pot” to be divided between you. The court has a number of options for dealing with properties, including the family home e.g. transfer it into the name of one party; sell it now and divide the proceeds as the court sees fit; allow one party to live in it e.g. as a family home for them and the children until the youngest finishes school, then sell it and divide the proceeds between you. The outcome depends on all the circumstances of your case, including which other assets and how much income each of you has.

If you are not married or in a civil partnership, it depends on whether you and your former partner entered into a Cohabitation Agreement, recording what happens if your relationship breaks down and what each of you is entitled to. This should include provision for any properties you own. If there is no Cohabitation Agreement, in the eyes of the law neither of you has any financial obligation towards the other. One of you can buy the other out (subject to your mortgage company’s consent), or the property can be sold and the net sale proceeds divided between you. Unless you have a Declaration of Trust stating otherwise, it will be presumed that each of you is entitled to half.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Houses are usually freehold. Subject to any mortgage, you own everything outright – the building and surrounding land. Flats are usually leasehold. You own the right to live in it for the remainder of the lease (it’s a long lease, often 99 or 125 years), and to access any communal areas. The freeholder owns the building and surrounding land. When the term of the lease comes to an end, and if it is not extended, the flat reverts to the freeholder.

So if I buy freehold, I can do what I like with the property and the land it’s on?
Broadly speaking, yes. Subject to planning laws, restrictions if it’s a listed building, and consent from the lender if it’s subject to a mortgage, you can make alterations e.g. put in a new kitchen or bathroom or convert the garage into a gym. The downside is that you are solely responsible for maintenance and repairs to the whole property. If roof tiles blow off in a storm, or minor subsidence causes cracks to the walls, you have to sort it out yourself.

And if I buy leasehold?
You have less freedom to alter the property and usually need the freeholder’s consent. Certain things may be prohibited, like knocking down internal walls. If you intend to refurbish, check if the freeholder will grant permission. You also have a positive obligation to maintain the property’s interior e.g. by redecorating every 5 years. With a freehold property, it is up to you if and when you redecorate. On the plus side, the freeholder is responsible for the building’s structure and communal areas, so you don’t have to carry out repairs to them, though you have to contribute to the cost.

I have to pay for the upkeep of a property I don’t even own outright?
Yes, there are charges payable by a leaseholder: ground rent as technically you rent the property (it may be a nominal sum, say £10 per year), service charges for day to day maintenance (e.g. cleaning of communal areas, gardening), and major works charges for large scale maintenance (e.g. redecorating the outside of the building). Before you buy, ask to look at the management accounts and check you can afford these charges.

So is it OK to buy leasehold, or should I hold out for a freehold property?
Leasehold is the norm if you’re buying a flat. Check the remaining term of the lease: as it gets shorter, the property’s value falls and it can be hard to sell on. Mortgage companies are also reluctant to lend funds for a property with a short lease. You may be entitled to extend the lease, and there will be a charge for doing so. Make sure you can afford it.

Also check who owns the freehold: a private landlord or a group of leaseholders who have bought the freehold and manage the property. If the latter, you can buy a share of the freehold, giving you a say in how it is run. If the leaseholders in your block have not yet bought it and you want to, there are rules entitling a group of you to do so in certain circumstances, so take legal advice.

If you’re buying a house, freehold is the norm. Be careful though, as property developers now sell leasehold houses as a way of making more money. Ground rent starts off at a modest rate, then increases significantly. You have the right to buy the freehold for a sum which is reasonable at the outset, but increases disproportionately. Buyers have ended up unable to pay ground rent or buy the freehold. If you want to buy a house that’s advertised as leasehold, ask lots of questions and take legal advice before committing to the purchase.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Sadly, there is increasingly a risk that at some stage during the purchase or sale, fraudsters may try to hack into your email correspondence, hoping to create fraudulent emails based on previous correspondence and thereby persuade you to transfer significant funds (such as completion monies) to the fraudster’s bank account. The following steps can help to stop you becoming a victim of this sort of cyber crime:

1. Ensure that all your internet access (laptop, i-pad, mobile phone) is protected by security software and keep it updated. Be careful about using free wifi in public places such as cafes or on transport systems, as it is not always secure.
2. Use passwords to protect email and other online accounts, especially on mobile devices which are more easily lost or stolen. Choose passwords that have a “high” security rating (e.g. comprise letters, numbers and symbols), and avoid the same password for multiple accounts. Change your passwords frequently.
3. Resist the temptation to update family and friends on your sale/purchase via social media. Even if you have high security settings, others who see and share your post might not. Information could end up in the hands of fraudsters looking for details of lucrative transactions, including property addresses and completion dates.
4. If you are instructing solicitors, conveyancers and/or estate agents, do your research to ensure they are reputable. Check they are registered with the relevant professional body. Where possible, follow personal recommendation. Be wary of those who operate only online, without proper business premises, and/or offer exceptionally low fees.
5. Avoid communicating sensitive information like bank account details by email, as it could be intercepted by hackers. Do so in person, by secure letter, or by telephone if you know the person you are talking to. If someone you do not recognise calls to discuss the transaction, tell them you will call back, then check if they are genuine (e.g. by phoning the organisation they claim to be from).
6. Learn how to recognise fraudulent emails:
   a. A business email address usually incorporates the business name. Be suspicious of emails from free email account providers like hotmail, gmail, yahoo.
   b. Be wary of emails that urge you to take immediate action and warn of negative consequences if you do not, such as the sale falling through.
   c. Be wary of emails that ask you to do something like click on a link or enter information, as doing this may enable the fraudster to access your email account.
   d. Look out for poor spelling and grammar which may indicate a fraudulent email.
7. Beware of instructions you receive to change bank account or payment details. In one case, fraudsters posing as solicitors acting in a transaction stole funds by claiming that their main bank account was being audited, and completion monies should be sent to a new account.
8. If you become suspicious that you may be the target of cyber criminals, alert those acting for you in the transaction and on the other side. If there is no innocent explanation for the suspicious behaviour, contact the police.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

you need to adjust your hours in light of childcare commitments or medical appointments, but your manager says no; you have been overlooked for a pay rise or promotion; a colleague is being hostile to you, making your working day miserable. Whatever the problem, the following points should help when trying to resolve it:

• Keep a diary, noting how and when the problem arose, further incidents if it is ongoing, steps you have taken to resolve it and how colleagues/your employer responded. If you have to argue your case in formal proceedings, you will need this sort of detail.
• Check whether you have cause for complaint by reviewing your employment contract, office manual and/or HR policies & procedures. Seek advice at an early stage from your HR department, trade union rep or solicitor. Advice at the outset can strengthen your case later on, if formal proceedings are necessary.
• Try to talk to the person concerned, to see if you can resolve matters informally. If you feel unable to do this, or are unsuccessful, speak to the person next in line: your manager; their manager; your HR department; your trade union rep. Keep your own notes of any meetings you attend, and consider inviting a colleague along to take notes for you.
• If you are unable to sort it out informally, check your contract, office manual and HR policies & procedures for steps to deal with it on a formal footing. Many employers have a formal grievance procedure. You should implement this first, before resorting to the employment tribunal. If you go straight to the tribunal, even if your claim is successful, you could receive a lower settlement for having not tried the grievance procedure first.
• Take legal advice on how to present your formal grievance. This should maximise your chances of a successful outcome, whether at this stage or at the employment tribunal stage.
• Take legal advice on the time limit for bringing an employment tribunal claim, as it differs from case to case. In most cases, you must start your claim no later than three months minus one day since the behaviour/event in question. And in most cases, you must first notify the Advisory Conciliation and Arbitration Service (ACAS) of your intention to bring a claim, so you have an opportunity to settle with the help of ACAS (“early conciliation”).
• Whichever route you take, be discrete. While it may be tempting to let off steam to colleagues, treat it as a private matter. If you end up in formal proceedings, there may be a requirement for those involved to keep it confidential.
• Be clear in your own mind what you want to achieve – whether a change to working practices, compensation (financial or otherwise) and/or for other people involved to be disciplined. Figure out in advance your priorities, where you are prepared to compromise and by how much. Your solicitor or trade union rep should be able to advise on the parameters of a reasonable settlement.
• Keep your long term as well as short term goals in mind. In particular, how important is it to preserve good relations with your employer? This could have a significant bearing on how you choose to proceed, when you have more than one option.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

This guide is intended as a general overview of the main process of obtaining a possession order, but you should always get advice tailored to your specific circumstances. There are particularly specific rules about using Section 21 Notices that you should seek advice on.

Standard Procedure

Under this procedure, the landlord uses the N5 Claim Form for Possession. The standard procedure is used when the landlord is claiming possession based on rent arrears or when the landlord cannot use the Accelerated Procedure, set out below.

The Claim Form should set out the details of the claim in a document called Particulars of Claim. In a claim for possession based on arrears or rent, then the Particulars include following information:

• The amount of arrears due at the start of the claim and a full breakdown or schedule, with dates, of when the arrears started.
• A calculation of the daily rate of rent and interest.
• Details of what steps have been taken to recover the arrears from the tenant.
• Information about the defendant’s circumstances, for example whether the tenant receives benefits.
• If the possession is based on the tenant’s conduct, give details of the conduct alleged.

Once the Claim Form and Particulars have been sent to the court, the court will issue, or start, the claim and a copy of these documents are sent to the tenant. At the same time, the court will fix a date and time for the first hearing and notify all parties. How soon the first hearing will be depends a lot on how busy the local courts are but is usually 6-8 weeks.

The tenant, who is the Defendant, then has an opportunity to respond to the claim by filing a Defence with the court. The Defendant usually has 14 days to do so. The purpose of the Defence is for the tenant o respond to the various allegations made against them and to explain why a possession Order should not be made.

Unlike in other kinds of claims, in a possession claim, if a defendant does not file a defence, this does not mean the landlord automatically “wins”. The court can, however, take that failure into account when deciding what to do.

No later than 2 clear days before the hearing, the landlord should file his/her evidence to support the claims they made in the Claim Form and particulars. They should do this by filing a Witness Statement, verified with a Statement of Truth. This Witness Statement should explain why the landlord is entitled to possession, exhibit a copy of the tenancy agreement and give clear details of all payments made or not made by the tenant and any other relevant matters.

At the hearing, the court can either treat it as a final hearing and make a decision on the day itself or the court can treat the hearing as a “directions hearing” where the court will give further directions (or a timetable of next steps) for the case to be decided at another, final, hearing at later date. Which way the court decides depends on whether the court feels there is enough evidence before it to make a final decision either way.

If the tenant does not turn up, the court can still make a possession order against them.

If the court decides that the claimant is entitled to possession, it will make an order for possession. A tenant will always been given a reasonable time to leave the premises and the parties can ask the court to decide what that date it. Where the possession order is based on a section 21 notice, the usual period is 14 days but can be extended up to 6 weeks in cases of exceptional circumstances.

Accelerated procedure

A landlord can use what is called the “accelerated possession procedure” if the landlord is terminating an assured shorthold tenancy by using a section 21 Notice. Some of the requirements a landlord must meet to use this procedure are:

• The tenancy must have started on or after 15 January 1989.
• The claim must be for possession only and so cannot include a claim for payment of arrears.
• The tenancy must be a written tenancy
• A valid notice under section 21(1) or section 21(4) of the Housing Act has been served on the tenant.

The landlord starts the claim using a N5B Claim Form. Evidence that the landlord has protected the deposit with a Tenancy Deposit Scheme must also be attached to the claim form. A landlord cannot serve a section 21 notice and utilise the accelerated procedure, if it has failed in its statutory duty to protect the deposit. The Claim form also requires a copy of the tenancy agreement and section 21 notice to be attached.

Once the claim form has been sent to court to be issued and the tenant receives a copy, the tenant has 14 days to file a Defence. If no Defence is filed, the Landlord can ask for the Possession Order to be made by simply completing the correct form and sending this to the court.

Unlike in the standard procedure, there is not normally a first hearing in the Accelerated procedure. Instead the paperwork is passed up to a judge to consider.

The judge will consider the claim and do one of the following things:

1. Make an order for possession without a hearing; or
2. Fix a hearing date if the judge is not satisfied that the claimant is entitled to possession under section 21; or
3. Strike out the claim if it is obvious to the judge that the landlord is not entitled to possession.

Key reforms to the court process in 1999 began a period of change where the objective is now to deal with cases justly and proportionately to the amount of money involved, the importance of the case, the complexity of the issues and the financial position of each party.

Diving headfirst into court proceedings is discouraged. If you have a case to bring, you are expected first to send the other party a “letter before action”, setting out your claim and the remedy you seek. The onus is then on all parties to voluntarily exchange information and documents about the matter, and explore the issues with a view to settling out of court. Parties are encouraged to try to settle using alternative dispute resolution (ADR). It is more efficient and cost effective, and people are more likely to be satisfied with and abide by an agreement they have reached themselves. A decision imposed on them by the court may leave a bitter taste. Also, court hearings are usually held in public and may be the subject of media reporting, putting reputations at risk. Out of court settlements are more likely to be confidential.

ADR includes negotiation (by the parties with the help of their legal advisors); mediation (with a mediator who helps the parties agree terms); and arbitration (an arbitrator hears the arguments and decides on settlement terms). If you do end up in court, the onus on trying to settle continues and you can do so at any stage of the proceedings.

Parties must be open about the evidence they have or know of. No more holding your cards to your chest and springing surprises at the door of the court. You have to disclose all documents which are, or may be, relevant to the issues. These include documents in support of, or harmful to, your own case or the other party’s case. There are also rules on relying on experts (e.g. property valuers or medical experts). You may no longer choose to pay experts to argue on your behalf. You need the court’s permission. In the first instance, a single joint expert is appointed as a neutral witness, whose duty is to the court (not to you or the other party) to report impartially.

Court language and procedure are simpler, for the benefit of non-lawyers. You no longer “issue a writ”, you start a claim using a “claim form”. Evidence is given in a “statement” rather than an “affidavit”. And the requirement for statements to be sworn before a Commissioner for Oaths is mostly waived in favour of signing a declaration that your evidence is true.

Court proceedings remain expensive but costs are more closely monitored. At nearly every hearing, each party will disclose their costs to date and/or going forward. The judge keeps a close eye on whether costs risk becoming disproportionately high. If they do, you will be urged to settle. Even if you win, and the other party is ordered to pay your costs, it is unlikely they will have to fund the full amount of the “winner’s” costs. Each party almost always pays something in costs, hence an all-round advantage to reaching an early settlement.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

Cohabitees do not have the same legal obligations towards each other that marriage or civil partnership brings. If your relationship breaks down, the law may not necessarily step in to protect your financial position, as it could do if you were married or in a civil partnership.

But it’s a 50/50 financial split surely I should be entitled to half?

Imagine that you and your partner live together for several years like a married couple, but without being married. Your partner owns the property you live in: they bought it many years ago in their name, and they pay the mortgage. You buy all the food and pay all the household bills, and the cost of this is about equal to your partner’s mortgage payments. In terms of outgoings, it is a 50/50 split.

If your relationship broke down and you separated, your partner would be entitled to keep the property, with the benefit of the mortgage payments they made. You would have little or no claim over it, even if your partner was only able to afford the mortgage because you paid for all the food and household bills.

What about our children?

If you and your partner are unmarried when your child is born, the father only has parental responsibility if he is named on the child’s birth certificate or enters into a formal agreement with the mother (this requires registration) or if the court orders it.

So, how do I protect myself?

If you had been married or in a civil partnership (with the same arrangements as to mortgage payments and other household expenditure), the court (depending on circumstances) would have wider powers to redistribute the equity in the property (it being the family home) between you and your partner.

As a cohabitee, you are not automatically protected by laws specific to relationship breakdown, in the way that spouses/civil partners are. However, you and your partner can create your own, legally binding agreement setting out how your finances (capital and income, assets and liabilities) are to be dealt with if you separated. This is known as a cohabitation agreement, and enables you to claim many of the safeguards available to spouses/civil partners, whilst remaining as cohabitees. The agreement should be drafted by a solicitor and each of you should take legal advice independently of the other, to ensure it is enforceable.

These materials and content have been prepared for the benefit of their viewers/readers. They are intended for marketing purposes only and are of a general nature and do not constitute legal advice applicable to any particular facts or circumstances. Kidd Rapinet LLP and/or the author(s) accept no duty of care, responsibility or liability for any loss or damage which you or any third party may suffer as a result of any reliance or use by you or they of these marketing materials and content, except to the extent it is not legally possible to exclude such liability. If you require legal advice on your own situation, please contact us so we can discuss how we may assist.

There is surely no better way to drain the romance out of your relationship than by contemplating its failure. Yet there may be good reason to reach agreement now as to how your finances would be dealt with should separation happen:

• You, or indeed your relatives, may wish to protect family wealth from the claims of a spouse or partner on relationship breakdown. A pre-nup is a way of ring-fencing assets handed down by way of gift or inheritance, and intended for future generations: descendants rather than those who marry into the family.
• You may have acquired assets before you met your spouse or partner – the fruits of a successful business or career which you worked hard for and regard as your own, to be kept separate from assets acquired jointly during your relationship. It may be only the latter you wish to share on relationship breakdown.
• There may be great inequality of wealth between you. Given that the English divorce court, at its discretion and depending on all the circumstances of the case, can put everything into the “pot” and divide a couple’s wealth equally between them, the richer party may wish to ring-fence at least part of their fortune.
• Sometimes one party has been through an acrimonious divorce themselves, or witnessed family or close friends endure legal wrangling over finances when a relationship breaks down. The opportunity to agree settlement terms in advance, when on good terms and capable of calm discussion, may understandably be an attractive option.
• You may have a child or children from a previous relationship and want to protect funds for them. Arguably assets generated during the previous relationship should be available for them, and not swept from under their feet by a later spouse or partner.
• If you lead an international lifestyle, as a result of which foreign courts could have jurisdiction over your divorce and financial settlement, you might want a pre-nup to secure the English court’s jurisdiction. This depends on which jurisdiction is potentially the most favourable for you, and you may need to take advice from both English and foreign lawyers.
• You may prefer the autonomy of drawing up your own settlement, rather than risking a legal battle resulting in a settlement imposed by the court. In addition, a pre-nup can include a confidentiality clause, whereas financial proceedings in court may be open to media reporting and unwelcome publicity.

And reasons for not venturing down the path of a pre-nup? Sadly there are cases where the effort of trying to agree terms exposes cracks in a relationship, such that one party calls off the wedding.
Also, under English law at the time of writing, pre- and post-nuptial agreements are not automatically enforceable. In certain circumstances, and especially if the agreement appears unfair to one party, the court can and does override them. However, there are steps in entering a pre- or post-nuptial agreement which you can take to minimise the risk of this: ensure each of you takes independent advice and gives full financial disclosure, include provision for the terms to be reviewed if your circumstances change significantly, sign the agreement well before your wedding or civil partnership date and, if there is insufficient time before the wedding, enter a post-nuptial agreement instead, so neither of you can claim to have signed under duress.

The laws for non-married cohabiting partners are not the same as those for married couples, and cohabiting couples can enter a cohabitation agreement, sometimes referred to as a “No-Nup”.

Although it is not a legal requirement to enter into a nuptial or cohabitation agreement, we encourage couples to consider making such arrangements in connection with their relationship or marriage.

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