Pre-marital and Pre-Civil Partnership Agreements 2017-11-23T09:32:59+00:00

Pre-marital and Pre-Civil Partnership Agreements

Although almost everyone can identify with the initial expectation that partnerships or marriages should last for the long term, sometimes these things are not meant to be. Put simply, pre-marital and pre-civil partnership agreements set out what the two parties would expect to happen if their relationship were to end. 

Although the titles of the contracts are slightly different, their content is actually very similar. Both arrangements provide an opportunity for each person to protect or respect the other’s separate assets that were acquired before the new partnership ceremony or planned marriage takes place.

What is a prenuptial agreement?

Also known as pre-marital agreements (or pre-civil partnership agreements for same-sex couples), prenuptial agreements are another term for contracts which two people sign before formalising their relationship. Although not strictly enforceable, pre-nuptial contracts tend to carry much more weight nowadays. Most specialists and many people view such contracts as a practical measure; certainly, the courts are increasingly taking notice of what is known as collaborative law and becoming a common part of modern financial planning. A prenuptial contract may be a good way to ring-fence a parental loan for a house deposit, for instance, or to set family or children’s trust funds apart.

Principal Contacts:

  • Lisa Broddle - Partner
    Lisa Broddle
    Partner
  • Tatjana Williamson
    Tatjana Williamson
    Solicitor/Assistant to Lisa Broddle
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Legal Precedents

Relatively new in English and Welsh legislation and civil law, some legal precedents have been established over recent years to start forming case law. The case of Gallagher vs Lawrence showed that a couple that enters into a civil partnership without a pre-civil partnership agreement would be treated in the same way as a married heterosexual couple. Specifically, either may claim a share of pre-acquired assets from the other. For some people, therefore, it is important to consider the ramifications and to set out the financial circumstances in detail before registering the relationship.

Legal Requirements

In the Supreme Court, the case of Radmacher vs Granatino established that courts would generally implement the conditions of pre-marital agreements providing that they had been arrived at voluntarily, i.e. without duress or pressure. Also, both signatories must have had full information about the other person’s financial circumstances. Additionally, the two partners must have intended the agreement to be effective, though this is generally deemed the case for agreements made from 2010 under English law. 

Legal practitioners have noted that the courts will consider pre-marital agreements only if it would be equitable in the particular case. In other words, it must be fair for both parties to be held to the said agreement at the time of the dissolution of the partnership or marriage.

Judicial Discretion

Nonetheless, the courts do still have the option to exercise their overriding discretion in England and Wales. It is important, therefore, to disclose assets fully and frankly. A reasonable period should elapse between signing the agreement and formalising the partnership, in order to avoid duress; a minimum of four weeks and even up to three months has been advocated. 

It is best if both parties obtain independent legal advice. Additionally, any contract should be kept up to date to demonstrate that its terms have adapted equitably, in accordance with the couple’s circumstances. The document may cover joint assets as well as separate ones.

Notably, in Scotland, civil partnership agreements are legally binding.

Planning for the Future

Whenever a couple is planning a marriage or civil partnership, there should be a discussion about their views, finances, plans and expectations. Planning for the future means that there are likely to be fewer surprises. Making time to consider the questions and answers with each other financial advice, personal guidance and legal advice is important to do as much as possible to be clear about the future for a successful life together. Or if things do not happen as you had hoped you have an agreement for a planned separation or divorce.

Whilst a pre-marital or pre civil partnership agreement is preferable it is possible to enter into a post nuptial or post-civil partnership agreement.

If a couple decide to live together, they should discuss the same issues and document their conclusions in a Living Together Agreement.