Couples enter into nuptial agreements before marriage to establish clear financial guidelines and protect individual assets in the event of separation, divorce or death. These agreements can provide clarity and security for both partners, helping to minimise disputes and protect individual interests. They can also help reduce potential conflicts by outlining how property, debts, and spousal support will be handled, providing peace of mind and fostering open communication about financial expectations. By addressing these issues upfront, couples can focus on building their relationship without the uncertainty of future disputes.

What is the current law on Nuptial Agreements?

At present, nuptial agreements in England and Wales are not legally binding but can be considered by courts during divorce proceedings, provided certain criteria are met to enhance their enforceability. Meeting these criteria significantly increases the likelihood that a court will uphold the terms of the agreement.

The criteria for negotiating Nuptial Agreements

Negotiating a nuptial agreement involves open communication between partners about their financial situations, assets, and expectations. Here are some key steps in the negotiation process:

• Initiate Discussions – approach the topic sensitively, ensuring both parties feel comfortable expressing their views and concerns.
• Seek Legal Advice – it’s crucial for each party to obtain independent legal advice. This ensures that both understand their rights and the implications of the agreement.
• Full Financial Disclosure – both partners should provide a complete picture of their financial situations. Transparency is essential for the agreement’s validity.
• Drafting the Agreement – work together, possibly with legal assistance, to draft an agreement that reflects both parties’ needs and expectations.
• Review and Amend – allow time for both parties to review the agreement and suggest changes before finalising it.

Legal Protections against Undue Pressure

UK law offers several protections to ensure that individuals do not enter nuptial agreements under undue pressure:

1. Voluntary Consent – both parties must freely consent to the agreement without any form of coercion or undue influence.
2. Independent Legal Representation – encouraging each partner to seek their own legal counsel ensures informed consent and reduces the risk of one party feeling pressured or unclear as to the legal ramifications of the agreement.
3. Financial Transparency – the requirement for full financial disclosure protects against claims of misrepresentation or lack of knowledge about the other party’s financial situation.
4. Fairness of the Agreement – courts will assess the fairness of the agreement at the time it was made. An agreement that is deemed to be unfair or inequitable will not be upheld.
5. Timing and Circumstances – negotiations should occur well in advance of the wedding or any significant life events, as close proximity can lead to claims of pressure. Any agreement prepared less than 28 days before the marriage, is deemed too close to be enforceable as this can infer coercion and duress. It is also necessary for there to be a periodic review of the deed to ensure that both spouses are still in agreement with the terms, and upon the occurrence of an event that may impact the fairness of the agreement, such as the birth of a first child.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

This article was brought to you by Kidd Rapinet’s family solicitors. You can book an appointment with any of the family lawyers across our other offices in Aylesbury, Canary Wharf, Farnham, High Wycombe, Maidenhead or Slough, using the form provided.  Please use the links provided to find more information on divorce or separation, child arrangements and other areas of family law.

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 them 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.

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What exactly is a prenuptial agreement?

A prenuptial agreement is an agreement that a couple enters before they marry, which sets out how they would want their finances to be divided between them if the marriage were to break down. The most common reason for people coming to talk to us to explore having a prenuptial agreement is that they want to protect a particular asset that they own before they marry.  The sorts of assets clients seek to protect include property, a business, or, quite often, an inheritance.

Prenuptial agreements are not automatically legally binding in England and Wales, but they are likely to be upheld if the following steps are complied with, which are considered indicative of a well-formed agreement:

• Each person should obtain full independent legal advice
• Each person should understand and fully accept the implications of potentially compromising their marital claims
• The agreement should be signed at least (but preferably more than) 28 days before the marriage ceremony
• There should be no indication that either person is being forced to enter into the agreement
• There should be full and frank financial disclosure made by each person.

Crucially, the terms of the agreement should appear fair in all the circumstances of the case at the time of separation and be within the parameters of what a Court would order, applying the considerations given in the Matrimonial Causes Act 1973 Section 25 (“the Section 25 criteria”). In respect of the first bullet point above, a prenuptial agreement is capable of being contested, so it is particularly important that you take specialist legal advice in order to give your agreement the best possible chance of success. A prenuptial agreement can’t simply say one party gets everything. One of the most common reasons a prenuptial agreement is not upheld is due to the unfairness of the outcome of the implementation of the agreement on one party or that it does not satisfy the Section 25 criteria.

Statistics show that for some years marriage had been in decline and cohabiting relationships on the rise, however, there appears to have been an increase in marriages after the courts changed their approach to prenuptial agreements following the landmark case of Radmacher in 2010, and the 2014 Law Commission report on the marital property which set out recommendations around the formation of nuptial agreements. Historically, a main driver for not marrying had been the potential financial consequences for each party in the event of a divorce which could not be regulated or mitigated in advance of the marriage. This is despite the fact that in every other scenario an individual reserves the right to deal with, and dispose of their assets, and income as they wish.  A prenuptial agreement goes some considerable way to allaying those fears.

If you are already married, you may choose to have a postnuptial agreement. This is an agreement entered into after marriage or a civil partnership that regulates the financial terms of any separation, divorce or dissolution.  Postnuptial agreements are often entered into when, say, one of the couple unexpectedly comes into some inheritance or wishes to embark on a new business venture.  Although postnuptial agreements are not automatically binding in England and Wales, if implemented correctly, they can be hard to challenge and offer significant security and reassurance within the marriage.

Common issues that are covered in postnuptial agreements are:

• What would happen to property that either of you independently brought into the marriage?
• What would happen to the family home?
• What would happen to any property given to you or inherited during the marriage?
• What would happen to joint assets?
• What would happen to your pensions?
• How would you deal with any debts?
• Would either of you pay or receive any maintenance from the other and, if so, for how long?

This article was brought to you by Kidd Rapinet Maidenhead’s family solicitors. You can book an appointment with any of the family lawyers across our other offices in Aylesbury, Canary Wharf, Farnham, High Wycombe, Maidenhead or Slough, using the form provided.  Please use the links provided to find more information on divorce or separation, child arrangements and other areas of family law.

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 them 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.

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What is a Prenuptial Agreement?

A Prenuptial Agreement or a Prenup is a contract entered into by yourself and your partner prior to getting married. It is intended to outline the ownership of your assets and income in the event of separation or divorce.

Why an Agreement?

It’s not about being fabulously wealthy but it is about protecting what you have.  A pre-nuptial agreement can be very useful to regulate how assets are divided upon separation in any of the following circumstances:-

1. If it is a second or third marriage;
2. There is a significant difference in the wealth of the spouses;
3. One spouse is expecting money from a source outside of the marriage e.g. inheritance;
4. The spouses want to ring-fence their wealth for their children as inheritance, say if they are marrying later in life.

Are Prenuptial Agreements legally binding?

Currently in England and Wales, a Prenup is not legally binding in that the Court does not have to automatically enforce the agreement reached but it will have a significant impact on a Court’s decision. In order to make it binding, it is necessary to meet the needs of the spouses and be fair and reasonable when allowing for the age of the spouses, the duration of the marriage and any financial or non-financial contribution that each spouse has made.

Prenuptial requirements

It is also imperative that the following conditions are met:-

1. The Agreement must be made by each person of their own free will. There cannot be any improper pressure or influence.
2. Each spouse must offer full disclosure of assets, liabilities, debts and income in the Agreement.
3. Each spouse must obtain legal advice on the terms of the Agreement.
4. The Agreement must be fair and reasonable. If the effect of the Prenup might be that they do not meet the children’s needs, or one spouse’s needs (where as the other spouse’s needs are more than comfortably met), then this will be treated as unfair.
5. If a Pre-nuptial agreement, it must be signed and witnessed as a deed no later than 28 days before the marriage.

What is needed in a Prenuptial Agreement?

The Prenup can deal with the family home, savings and investments, pensions, how debts are to be discharged, the financial arrangements for the children, maintenance for either spouse and how any inheritance or trusts are to be dealt with.

The Importance of a Review of the Prenuptial Agreement

The longer the duration of the marriage following the Prenup, the greater the possibility that it may ultimately not be fair to bind the spouses to their contact. There may also be financial changes for the worse or better, in a spouse’s assets or income. For this reason, regular reviews of the agreement are strongly advisable, for the purposes of the terms being enforced, or in the event that there may be a change in circumstances, such as the birth of a child.

Timing of the Prenuptial Agreement

Whilst a Prenup must be signed before the marriage takes place, if a couple gets married and decides that they want protection after the marriage, they can sign a “Post-Nuptial Agreement” instead.

If you require advice on a Prenuptial or Postnuptial agreement, or you require mediation to discuss the contents of either, we are here to help.

This article was brought to you by Kathryn Coyle from our family team in Maidenhead.  Kidd Rapinet offers a variety of family services across 6 branches you can search our family teams here

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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.

The post The Unmarried Truth: Living together is not the same (in the eyes of the law) as marriage appeared first on Kidd Rapinet.

• 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 prenup? 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.

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.

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The Covid-19 lock-in has seen many people take the next step in their relationship at a much faster pace then they may have had planned simply because they do not want to be alone at this time and face lock-in away from each other. They now live and work together because they did not want to be apart and this time together may test the strength of their relationship. For some people, this may be a temporary measure only but for others, it is the start of a new future together.

However, it may be that being fast tracked to take relationship to the next stage means you’ve not considered any legal implications of living together.

If you are moving into your partner’s property then you will not automatically have any financial interest in the property but even if you are not married legal rights may arise as a consequence. The partner who is not the legal owner of the property may still be able to establish a legal interest in certain circumstances e.g. the length of the cohabitation, improvements to the property and the intentions of the parties and a few more. If at some point in the future you broke up with your partner then the onus would be on the non-owning party to prove that they have a financial entitlement in respect of the property.

Kidd Rapinet advise couples that communication is key even if you have already moved in together during this lockdown. This will minimise misunderstandings further down the line as to the legal and financial situation.  So if you intend on contributing to the mortgage and/or household bills then talk about it. Try to be very clear from the start what financial contributions to running the property will be made and if they are intended to provide a legal interest in the property.

You may wish to consider preparing a Cohabitation Agreement with the assistance of a specialist family lawyer as this provides clarity. This can, amongst other things, set out how the mortgage repayments and utility bills will be paid, how any joint bank account will run, responsibility for structural repairs and renovations, and what will happen to the property should there be a breakdown in the relationship.

The Cohabitation Agreement can cover a variety of issues, such as:

• Ownership of assets held in sole names prior to the relationship
• How you pay rent/mortgage, utilities, and other outgoings
• Ownership of assets acquired during the relationship
• Ownership of gifts received during the relationship
• Liability for debts, such as overdraft, credit cards, and bank loans, for example
• Ownership of vehicles
• What will happen if you separate

It would not be appropriate for the same firm of solicitors to advise both parties about the content and effect of the Agreement, due to potential conflicts of interests, so each of you should obtain separate legal advice before signing the Agreement.

If you would like to discuss a cohabitation agreement or any other family law issue, please speak to Reshma Sunnassee at rsunnassee@kiddrapinet.co.uk or call 01296 509985.  At this current time, we can no longer offer a face-to-face service at our offices however appointments can be carried out via phone, email and video conferencing.

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Some common questions which might arise on a separation:

1. Our home is in my partner’s sole name – what are my property rights – Unhappily these may be non-existent or very limited and quite possibly expensive to pursue.  Your only remedy might be to look to the Trusts of Land and Appointment of Trustees Act 1996 (ToLATA).  You would need to show there that had been a “common intention” for you to benefit from the property or its proceeds once sold.
2. I have been paying the household bills while my partner was paying the mortgage. Does that not count? – The Family Courts have no powers to award compensation either because of the length of your relationship or any financial contributions that you may have made.
3. Is there anything which I can do to try and protect my position? – It is open to you and your partner to enter into a Deed of Trust.  This is a legally binding document.  The Deed can specify how the beneficial interests in your home are to be held (e.g. 50:50)
4. My partner earns considerably more; if we separate I am likely to lose out financially from the income which he contributes. Can I do anything about it? – You have no rights to maintenance under family law.  However, a Cohabitation Agreement may be able to afford some comfort.  It could record your current contributions towards the mortgage and domestic outgoings.  It could also set out what should occur should your relationship ever break down.

(A word of warning.  Cohabitation Agreements are not set in stone.  As a relationship develops, the original force of it may alter or even weaken.  However, a Family Court may find its contents persuasive, particularly if it is based upon clear and full disclosure of means and legal advice has been taken.  Ultimately a Family Court does have the discretion to override their provisions.

5. We have been living together for many years. We have never married.  What if my partner should predecease me? – It is best that both of you should consider making Wills and if you wish to provide for each other from your respective estates.  This is far more preferable than having to make claims afterwards if your partner should predecease you.  One door lays open: that would be to launch a claim under the Inheritance (Provision for Family and Dependants) Act 1975.  This permits a surviving cohabitee to make a claim against the estate of their deceased partner.  However such a claim may not be straightforward.  It may be opposed by the other beneficiaries.
6. My partner has passed on without leaving a Will. Do I have any rights? – If your partner has died without leaving a Will, this means that they will have died intestate.  The laws of intestacy do not make any allowances for the claims of unmarried cohabitees.  This will normally mean that the deceased’s assets will pass on to other family members.
7. We have children; what about their rights if we should separate? – You should look to the protections afforded by Schedule 1 of the Children Act 1989.  Although the Court has a complete discretion, it is open to an unmarried carer to apply for regular maintenance of a child or any children under this Schedule.

Love, care and commitment should always be the golden threads within the tapestry of any relationship.  However, forethought and agreement upon what is to be done should the relationship sour, may save on tears, stress and expense for both partners in the unhappy event of a breakdown.

This article was brought to you by Richard Peter Tymkiw, Family Lawyer and Senior Litigation Partner

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.

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